Drawsand v. Cutonelli et al

Filing 17

ORDER DENYING MOTION TO SET ASIDE JUDGMENT by Judge William Alsup [denying 12 Motion to Set Aside Judgment]. (whasec, COURT STAFF) (Filed on 5/2/2013) (Additional attachment(s) added on 5/2/2013: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PAMELA DRAWSAND,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
CHRISTOPHER CUTONELLI, CHRISTOPHER
CHEN, BEVERLY DANIELS-GREENBERG,
ALAMEDA COUNTY BOARD OF
SUPERVISORS, ALAMEDA COUNTY
DISTRICT ATTORNEY’S OFFICE, ALAMEDA
COUNTY SHERIFFS’ DEPARTMENT, and
DOES 1–7,

ORDER DENYING
MOTION TO SET
ASIDE JUDGMENT

Defendants,
/

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No. C 13-00410 WHA

INTRODUCTION
In this 42 U.S.C. 1983 action, plaintiff files a motion to set aside the judgment entered

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against her, following dismissal of the action for failure to prosecute. For the reasons stated

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below, her motion is DENIED.

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STATEMENT
Pro se plaintiff Pamela Drawsand filed a complaint against several Alameda County

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entities and officials alleging various civil rights violations. She concurrently filed an

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application to proceed in forma pauperis. Upon review of the application, an order issued

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on February 20, 2013, dismissing her complaint for failure to state a claim and denying her

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application as moot. That order was mailed to plaintiff on February 21, and allowed her to seek

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leave to file an amended complaint by March 13. Plaintiff failed to do so. Accordingly, by order

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dated March 25, plaintiff’s action was dismissed for failure to prosecute, and judgment was

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entered against plaintiff. On April 17, plaintiff filed the instant motion to set aside the judgment.

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She simultaneously filed an appeal with our court of appeals. Her appeal was held in abeyance,

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pending resolution of the instant motion.

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ANALYSIS

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FRCP 60 allows courts to set aside judgment under six grounds, just two of which

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may be relevant here. “On motion and just terms, the court may relieve a party or its legal

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representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect . . . [or] (6) any other reason that

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For the Northern District of California

United States District Court

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justifies relief.” FRCP 60(b)(1), (b)(6). The Supreme Court, however, has noted that when

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parties are “faultless,” and circumstances like “incarceration, ill health, and other factors beyond

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. . . reasonable control” prevent them from making timely filings, they cannot seek relief under

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FRCP 60(b)(1), and must seek relief under FRCP 60(b)(6). See Pioneer Inv. Servs. Co. v.

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Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993). “To justify relief under subsection

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(6), a party must show ‘extraordinary circumstances’ suggesting that the party is faultless

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in the delay.” Ibid. (citations omitted). Furthermore, our court of appeals has noted that

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“Rule 60(b)(6) has been used sparingly as an equitable remedy to prevent manifest injustice.”

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United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).

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According to plaintiff, she was unable to meet the March 13 deadline to seek leave to

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amend because she was sick and a victim of computer hacking. If true, this places her under

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FRCP 60(b)(6), as circumstances beyond her control prevented her from meeting the deadline,

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and not her own negligence. See Pioneer Inv. Servs. Co., 507 U.S. at 393. This order, however,

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cannot find that she has shown the extraordinary circumstances warranting relief under

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FRCP 60(b)(6).

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Plaintiff claims she contracted a bacterial infection from a restaurant the same day

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an order dismissed her complaint and application to proceed in forma pauperis (April 20).

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She appends a copy of a discharge note for an emergency room visit nineteen days later.
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According to the note, she had a “possible infection” and was discharged the same day

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she visited the hospital (March 9). The note makes no mention of what the cause for the

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possible infection could have been, and does not impose any “activity restrictions” upon her.

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Therefore, this order finds that her illness does not constitute an extraordinary circumstance.

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Plaintiff also claims she filed a police report regarding the alleged computer hacking on

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the same day she visited the emergency room (March 9). Her motion states that she appended

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the police report, but she did not. Nor does plaintiff provide any specific details or sworn

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statement setting forth when the hacking occurred and what effect it had on her ability to

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comply with the order dated April 20. This order then, cannot find when this alleged hacking
occurred, or that she actually filed a police report the same day she visited the emergency room.

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For the Northern District of California

United States District Court

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Therefore, the alleged hacking cannot comprise an extraordinary circumstance either.

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CONCLUSION
Plaintiff’s motion to set aside judgment is DENIED. This order reminds plaintiff that

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this Court waited twelve days after the deadline to dismiss her complaint for failure to prosecute

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(March 25). Furthermore, plaintiff’s original complaint failed to state a claim and her instant

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motion makes no effort to explain how or why any amended complaint could cure the defects.

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In her original complaint, plaintiff essentially alleged that an Alameda County deputy sheriff

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demanded plaintiff “stay” and also asked to see the latter’s driver’s license. As this court

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observed in the order dismissing the complaint, “[n]ot even the most generous reading of the

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complaint reveals a claim on which relief may be granted” (Dkt. No. 9). Finally, this order also

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reminds plaintiff that pursuant to an order from our court of appeals dated April 23, plaintiff

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shall — within five days of this ruling — “notify [our court of appeals] in writing of the ruling

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and shall advise whether [she] intends to prosecute [the] appeal.”

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IT IS SO ORDERED.

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Dated: May 2, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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