Gough-Adshima v. Schwarnegger et al

Filing 6

ORDER granting Plaintiff's 5 Motion to Vacate, 5 Motion to Set Aside, and 5 Motion to Reopen Case. Clerk directed to reopen the case. Pla is granted 45 days leave from the which cures the deficiencies of pleading noted in Court's 7/3/ 2008 Order. Pla's Amended Complaint must be complete and w/o reference to original Complaint. Signed by Judge Irma E. Gonzalez on 3/30/2009. Case reopened. (All non-registered users served via U.S. Mail Service).(jah) (jrl). Modified on 6/2/2009 - Corrected spelling (jah).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I. 21 PROCEDURAL HISTORY On May 29, 2008, Jeff Gough-Adshima ("Plaintiff"), a former state inmate housed at
vs.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
JEFF S. GOUGH-ADSHIMA, CDCR #V-64431, Plaintiff,
Civil No. 08-0992 IEG (NLS)

ARNOLD SCHWARZENEGGER, et al., Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO FED.R.CIV.P. 60(b) [Doc. No. 5]

22 Chuckawalla State Prison located in Blythe, California and proceeding pro se, filed a civil rights 23 Complaint pursuant to 42 U.S.C. § 1983. The Court issued an Order on July 3, 2008 granting 24 Plaintiff's Motion to Proceed in forma pauperis ("IFP") and sua sponte dismissed his Complaint 25 for failing to state a claim and for seeking money damages against immune Defendants. (See 26 July 3, 2008 Order at 6-7.) Plaintiff was given leave to file an Amended Complaint but never 27 did so. (Id.) On March 25, 2009, Plaintiff filed a "Motion to Vacate, Set Aside and Reopen the 28 Civil Proceedings" pursuant to FED.R.CIV.P. 60(b) [Doc. No. 5].
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1 II. 2

PLAINTIFF'S MOTION TO VACATE FINAL JUDGMENT [Doc. No. 5] Under Rule 60(b), a motion for "relief from judgment or order" may be filed within a

3 "reasonable time," but usually must be filed "not more than one year after the judgment, order, 4 or proceeding was entered or taken." FED.R.CIV.P. 60(b). Reconsideration under Rule 60 may 5 be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly 6 discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has been 7 satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b). 8 Here, Plaintiff claims that he did not receive the Court's Order issued on July 3, 2008

9 because he was released from Chuckawalla State Prison on June 18, 2008. (See Pl.'s Mot. at 6.) 10 While nearly a year has passed since the Court issued its previous Order, and Plaintiff's 11 Complaint suffered from some serious deficiencies of pleading, the Court will reopen the case 12 and permit Plaintiff to file a First Amended Complaint. 13 However, Plaintiff is cautioned that he must comply with the Court's July 3, 2008 Order

14 in all respects and he must comply with FED.R.CIV.P. 8. If Plaintiff's Amended Complaint does 15 not state a claim or seeks money damages against immune Defendants, the Court will dismiss 16 this action. 17 III. 18 CONCLUSION AND ORDER Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion for Relief

19 from Judgment [Doc. No. 5] pursuant to FED.R.CIV.P. 60(b) is GRANTED. The Clerk of Court 20 is directed to reopen the case. Plaintiff is further GRANTED forty five (45) days leave from 21 the date this Order is "Filed" in which to file a First Amended Complaint which cures all the 22 deficiencies of pleading noted in the Court's July 3, 2008 Order. Plaintiff's Amended Complaint 23 must be complete in itself and without reference to his original Complaint. See S.D. CAL. CIVLR 24 15.1. 25 IT IS SO ORDERED.

26 DATED: March 30, 2009 27 28 IRMA E. GONZALEZ, Chief Judge United States District Court
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