Clark v. Martel

Filing 32

ORDER GRANTING PLAINTIFF'S MOTIONS FOR RECONSIDERATION; DENYING AS MOOT HIS REQUEST FOR A COPY OF DOCKET SHEET; AND REOPENING CASE. Signed by Judge Yvonne Gonzalez Rogers on 4/23/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 4/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DOUGLAS DANIEL CLARK,

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No. C 11-03520 YGR (PR)

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MICHAEL MARTEL, et al.,

ORDER GRANTING PLAINTIFF'S
MOTIONS FOR RECONSIDERATION;
DENYING AS MOOT HIS REQUEST
FOR A COPY OF DOCKET SHEET;
AND REOPENING CASE

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Defendants.
_______________________________________/

(Docket Nos. 19, 23)

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Plaintiff,
vs.

This civil rights action was dismissed without prejudice by the Court on August 29, 2012.

United States District Court
For the Northern District of California

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The Court concluded that dismissal was required because Plaintiff failed to submit a timely

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amended complaint by the August 24, 2012 deadline. Plaintiff now seeks reconsideration of the

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dismissal by filing two documents on September 4, 2012 and December 12, 2012 entitled, "Notice

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RE: Amended Petition Filed on Time Under Houston v. Lack 847 [sic] U.S. 266, Dismissal Order Is

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In Error," and "Request for Docket Copy; Request for Reply to the Filed Notice that Court's

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Dismissal Was Illegal," respectively, which the Court construes as motions for reconsideration

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under Rule 60(b) of the Federal Rules of Civil Procedure.

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On January 29, 2013, Plaintiff filed a notice of appeal with the Ninth Circuit Court of
Appeals.
On February 4, 2013, the Ninth Circuit issued an order holding the appeal proceedings "in

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abeyance pending the district court's resolution of the pending September 4, 2012 motion." (Ninth

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Circuit Feb. 4, 2013 Order at 1.)

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Where the district court's ruling has resulted in a final judgment or order, a motion for

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reconsideration may be filed under Rule 60(b). Rule 60(b) provides for reconsideration where one

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or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect;

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(2) newly discovered evidence which by due diligence could not have been discovered before the

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court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been

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satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Plaintiff contends and submits a copy of the relevant page from the prison's outgoing legal

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mail logbook as proof that he submitted his amended complaint to prison authorities on August 21,

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2012. Meanwhile, the record shows that Plaintiff's amended complaint was received by the Clerk

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of the Court on September 6, 2012; however, it was not entered into the Court's electronic database

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until September 10, 2012 -- twelve days after the aforementioned dismissal order was signed and

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issued. A pro se prisoner's filing is deemed filed on the date of its submission to prison authorities

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for mailing to the court, as opposed to the date of its receipt by the court clerk. Houston v. Lack,

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487 U.S. 266, 276 (1988). Therefore, the amended complaint should have been deemed filed on

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August 21, 2012. Because the record shows that Plaintiff's amended complaint should have been

United States District Court
For the Northern District of California

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deemed filed three days before the August 24, 2012 deadline, Plaintiff's motions for reconsideration

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(Docket Nos. 19, 23) are GRANTED.

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Plaintiff has also filed a request for a docket sheet (Docket No. 23). On January 29, 2013,

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the Clerk of the Court sent Plaintiff a copy of the docket sheet. Therefore, his request is DENIED

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as moot.
CONCLUSION

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1.

Plaintiff's motions for reconsideration (Docket Nos. 19, 23) are GRANTED. The

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Clerk shall REOPEN this action, VACATE the Court's August 29, 2012 Order of Dismissal

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Without Prejudice, and REINSTATE the amended complaint, which should be reflected as deemed

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filed on August 21, 2012. The Court will review Plaintiff's amended complaint in a separate

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written Order.

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2.

Plaintiff's request for a docket sheet (Docket No. 23) is DENIED as moot.

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3.

This Order terminates Docket Nos. 19 and 23.

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4.

The Clerk shall send a copy of this Order to the Ninth Circuit.

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IT IS SO ORDERED.

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DATED: April 23, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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G:\PRO-SE\YGR\CR.11\Clark3520.GrantRECON&reopen.frm

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