Evans v. Department of Corrections

Filing 166

ORDER by Judge Whyte granting 164 Motion Relief From Judgment Under Rule 60. (rmwlc2, COURT STAFF) (Filed on 10/5/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Jamar Evans ("Evans"), proceeding pro se in this action, moves a second time for relief from this court's order granting defendant County of Santa Clara's (Department of Corrections) ("County") motion for summary judgment and judgment thereon. Both were entered on September 11, 2008. The County has represented to the court that it relies on its previous opposition to Evans' first motion for relief from judgment. For the reasons stated below, the court grants the motion. Evans moved once before for relief from judgment, and the court denied his request on April 28, 2009, finding that Evans had not offered any evidence to support a finding of mistake or excusable neglect under Federal Rule of Civil Procedure 60(b)(1). Order Denying Relief from Judgment Without Prejudice (Docket No. 163) 3-5. In that order, the court stated that Evans should
ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT

E-FILED on

10/05/09

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION JAMAR EVANS, Plaintiff, v. UNKNOWN NAMES OF DEPARTMENT CORRECTION OFFICERS, Defendants. No. C-03-05420 RMW ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT [Re Docket No. 164]

No. C-03-05420 RMW
JAS

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

make a "sufficient showing of mistake, inadvertence or excusable neglect including a sworn affidavit or declaration explaining that he did not receive notice of the motion, how frequently he checked his mail in February 2008, what attempts he made to contact the County or court in 2008 and any other facts he has justifying relief." With his renewed motion, Evans submits a declaration stating that he checked his mail two or three times a week in 2008, and never received the County's motion for summary judgment. Decl. of Jamar Evans In Support of Renewed Motion for Relief 1. Evans also states that he contacted the County four times in 2008, and received no notice of the County's motion for summary judgment. Id. Evans states that he cannot explain the unusual circumstances of his not receiving the motion. Id. The court is hesitant to grant the requested relief because Evans' explanation relies on facts that cannot otherwise be confirmed or refuted. Nonetheless, because Evans has made a showing of excusable neglect, the court grants his motion for relief from judgment. Further, Evans has generally been responsive to court obligations. III. ORDER For the reasons stated above, the court grants Evans' motion for relief from judgment. The order granting summary judgment to the County and the accompanying judgment in the County's favor are hereby vacated. Evans shall file an opposition to the County's motion for summary judgment (Docket No. 136) by November 6, 2009. Any reply will be submitted by November 13, 2009. The court will then set a hearing date, if necessary.

DATED:

10/05/09

RONALD M. WHYTE United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT

No. C-03-05420 RMW
JAS

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Notice of this document has been sent to: Plaintiff: Jamar James Evans P. O. Box 25 Atwater, CA 95301 209-358-8909 Counsel for Defendants: Neysa A. Fligor [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated:

10/05/09

JAS Chambers of Judge Whyte

ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT

No. C-03-05420 RMW
JAS

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