Harrison v. Smith
Filing
38
ORDER DENYING PLAINTIFF'S MOTION TO VACATE JUDGMENT (Illston, Susan) (Filed on 12/7/2011)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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No. C 08-4123 SI (pr)
8 MARCUS HARRISON,
v.
11 E. SMITH,
For the Northern District of California
United States District Court
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ORDER DENYING
PLAINTIFF’S MOTION TO
VACATE JUDGMENT
Plaintiff,
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Defendant.
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This is a civil rights case filed pro se by a state prisoner. Plaintiff claimed that defendant,
15 a correctional officer, retaliated against him in several ways for his having filed a lawsuit against
16 another correctional officer. Defendant filed a combined motion to dismiss and for summary
17 judgment. The court concluded that plaintiff had not exhausted his administrative remedies and
18 that there was no genuine issue of material fact as to retaliatory motive, and granted the motion.
19 Judgment was entered in favor of defendant.
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Plaintiff has moved to vacate the judgment, contending that the court erred in concluding
21 that he had not exhausted his administrative remedies. See Fed. R. Civ. P. 60(b)(1) (providing
22 that judgment may be vacated on grounds of “mistake, inadvertence, surprise or excusable
23 neglect."). He does not challenge the court’s ruling on the motion for summary judgment.
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In his motion plaintiff merely reargues a contention he made in opposition to the motion
25 to dismiss, that he had been told he could not proceed further with his grievance, and that he thus
26 had exhausted such remedies as were “available.” The court rejected that argument in the ruling,
27 concluding that on the undisputed facts the grievance had been divided into two parts, one of
28 which related to supplies and was cancelled and thus not further appealable, and the other of
1 which plaintiff could have appealed but did not. There is nothing new in the motion that shows
2 mistake as to that point. But in any event, the ruling on the motion for summary judgment,
3 which plaintiff does not challenge, is sufficient to support the judgment. The motion to vacate
4 (document no. 36) is DENIED.
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IT IS SO ORDERED.
6 Dated: December 7, 2011 .
_______________________
SUSAN ILLSTON
United States District Judge
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For the Northern District of California
United States District Court
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