Rodriguez v. Hennessey

Filing 53

ORDER by Judge Hamilton denying 50 52 Motion for New Trial. (pjhlc1, COURT STAFF) (Filed on 1/4/2012) (Additional attachment(s) added on 1/4/2012: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 DANIEL RODRIGUEZ, Plaintiff, 8 9 v. ORDER SHERIFF MICHAEL HENNESSEY, 11 For the Northern District of California United States District Court 10 No. C 10-2249 PJH Defendant. _______________________________/ 12 13 Pro se plaintiff Daniel Rodriguez filed this action on May 25, 2010, against defendant 14 Michael Hennessey, Sheriff of the County of San Francisco. Plaintiff, who was in the 15 custody of the Sheriff’s Department at various times from November 2009 through March 16 2010, alleges that on November 4, 2009, he was assaulted and battered by one or more 17 Sheriff’s Deputies, including a Deputy J. Aguirre. Plaintiff was released from custody on 18 March 25, 2010. 19 Defendant moved to dismiss the complaint based on failure to exhaust 20 administrative remedies. On September 9, 2010, the court denied the motion, on the basis 21 that plaintiff was not in custody when he filed the complaint. Defendant then moved for 22 judgment on the pleadings. Plaintiff did not respond to the motion, and did not appear at 23 the noticed hearing. On December 9, 2010, the court granted the motion as to any federal 24 claims, and dismissed the state law claims without prejudice to refiling in state court. Also 25 on December 9, 2010, the court entered judgment in favor of defendant. Plaintiff did not 26 file a notice of appeal. 27 28 On December 21, 2011, plaintiff filed a motion for “a new trial.” On December 27, 2011, plaintiff filed a second motion for “a new trial.” To the extent that these motions are 1 intended as motions to alter or amend the judgment pursuant to Federal Rule of Civil 2 Procedure 59, they are DENIED as untimely. See Fed. R. Civ. P. 59(e). To the extent that 3 they are intended as motions for relief from judgment pursuant to Federal Rule of Civil 4 Procedure 60(b) (1), (2), or (3), they are DENIED as untimely. See Fed. R. Civ. P. 5 60(b)(c)(1), To the extent that they are intended as motions for relief from judgment 6 pursuant to Rule 60(b)(4), (5), or (6), they are DENIED because plaintiff has stated no 7 basis for the motion, whatsoever, under those subsections. 8 9 Dated: January 4, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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