Daughtery v. Wilson et al

Filing 187

ORDER: IT IS HEREBY ORDERED that the motion for Crateo indication is GRANTED (ECF No. 183 ), and this Court indicates it would entertain a Rule 60(b) motion if the case were remanded by the Court of Appeals for the Ninth Circuit. IT IS FURTHER ORDER ED that the Motion for Court Order to Prison Compelling the Photocopying of More Than 100 Pages (ECF No. 186 ) is DENIED without prejudice on the basis that there are no matters pending before this Court at this stage in the proceedings. The case remains closed. Signed by Judge William Q. Hayes on 9/30/2011. (USCA Case Number 11-56623. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM JOHN DAUGHTERY,

CASE NO. 08cv408-WQH-BLM

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ORDER

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Plaintiff,
vs.
D. WILSON, S.D.P.D.; E. TAGABAN,
S.D.P.D.; DET. LEMUS, S.D.P.D.; SGT.
GRIFFIN, S.D.P.D.,

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Defendants.

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15 HAYES, Judge:
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On July 1, 2011, the Magistrate Judge issued a Report and Recommendation

17 recommending that Defendants’ Motion for Summary Judgment be granted. (ECF No. 173).
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The docket reflects that all parties were served with the Report and Recommendation

19 and no objections to the Report and Recommendation were filed.
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On August 19, 2011, the Court adopted the Report and Recommendation and granted

21 Defendants’ Motion for Summary Judgment. (ECF No. 174).
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On August 19, 2011, Judgment was entered and this case was closed. (ECF No. 175).

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On September 13, 2011, Plaintiff, a state prisoner proceeding pro se, filed a “Motion

24 to Reconsider Order Pursuant to FRCP Rule(s) 59 and 60(b).” (ECF No. 177). Plaintiff stated
25 that he did not receive a copy of the Report and Recommendation, and he “cannot request
26 reconsideration on other grounds because [he] ha[s] no copy of the Report [and
27 Recommendation].” Id. at 2.
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On September 14, 2011, the Court issued an Order. (ECF No. 178). The Court stated:
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08cv408-WHQ-BLM

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The Court construes Plaintiff’s “Motion to Reconsider Order Pursuant to
FRCP Rule(s) 59 and 60(b)” to be a motion for an extension of time to file a
motion pursuant to Federal Rules of Civil Procedure 59 and/or 60(b) after
Plaintiff has had an opportunity to review the Report and Recommendation. So
construed, the motion is granted.

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IT IS HEREBY ORDERED that Plaintiff’s motion for an extension of
time to file a motion pursuant to Federal Rules of Civil Procedure 59 and/or
60(b) is GRANTED. (ECF No. 177). No later than November 15, 2011,
Plaintiff may file a motion pursuant to Rules 59 and/or 60(b). The Clerk of the
Court shall mail Plaintiff a copy of the Report and Recommendation filed on
July 1, 2011.

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On September 19, 2011, the Clerk of the Court received a Notice of Appeal of the

10 August 19, 2011 Order of the Court. (ECF No. 179).
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On September 19, 2011, the Clerk of the Court received a “Motion for Relief from

12 Judgment Pursuant to F.R.A.P. Rule 60(b) or Alternatively, to Alter, Amend Judgment
13 Pursuant to F.R.C.P. Rules 52(b) and 59(e), 60(b)” (“Motion for Relief from Judgment”).
14 (ECF No. 183).
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“Once an appeal is filed, the district court no longer has jurisdiction to consider motions

16 to vacate judgment. However, a district court may entertain and decide a Rule 60(b) motion
17 after notice of appeal is filed if the movant follows a certain procedure, which is to ask the
18 district court whether it wishes to entertain the motion, or to grant it, and then move this court,
19 if appropriate, for remand of the case.” Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir.
20 2007) (quotation and citations omitted); see also Crateo, Inc. v. Intermark, Inc., 536 F.2d 862,
21 869 (9th Cir. 1976) (“Because of the pending appeal, the District Court had no jurisdiction to
22 enter an order under Rule 60(b). The most the District Court could do was to either indicate
23 that it would ‘entertain’ such a motion or indicate that it would grant such a motion. If
24 appellant had received such an indication, its next step would have been to apply to this Court
25 for a remand.”). Because an appeal has been filed, this Court has no jurisdiction to decide a
26 motion pursuant to Federal Rule of Civil Procedure 60(b), although the Court may enter an
27 order indicating that the Court would entertain a Rule 60(b) motion. See id. Accordingly, the
28 Court construes the Motion for Relief from Judgment (ECF No. 183), to be a motion for an
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08cv408-WHQ-BLM

1 indication pursuant to Crateo, 536 F.2d at 869. So construed, the motion is granted, and the
2 Court “indicate[s] that it would entertain” a Rule 60(b) motion. Id.
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IT IS HEREBY ORDERED that the motion for Crateo indication is GRANTED (ECF

4 No. 183), and this Court indicates it would entertain a Rule 60(b) motion if the case were
5 remanded by the Court of Appeals for the Ninth Circuit.
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IT IS FURTHER ORDERED that the Motion for Court Order to Prison Compelling the

7 Photocopying of More Than 100 Pages (ECF No. 186) is DENIED without prejudice on the
8 basis that there are no matters pending before this Court at this stage in the proceedings.
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The case remains closed.

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DATED: September 30, 2011
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WILLIAM Q. HAYES
United States District Judge

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