Davis v. Trust Company of the West

Filing 7

ORDER Denying Plaintiff's 6 Motion for Relief From Court's October 28, 2008 Order Pursuant to Fed.R.Civ.P. 60(b). Signed by Judge Larry Alan Burns on 11/16/09. (All non-registered users served via U.S. Mail Service)(pdc)(jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. P ROCEDURAL HISTORY P la in tif f , an inmate currently incarcerated at the California Correctional Institution lo c a te d in Tehachapi, California, and proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983 on October 20, 2008, along with a Motion to Proceed in forma pauperis ("IFP"). On October 28, 2008, this Court dismissed Plaintiff's civil action as frivolous because i t was duplicative of Davis v. Trust Company of the West, et al., S.D. Cal. Civil Case No. 060 7 9 3 W (WMc). See Oct. 28, 2008 Order at 2. The Court also denied Plaintiff's Motion to P ro c e e d IFP as moot. Id. at 3. -1vs. T R U S T COMPANY OF THE WEST, Defendants. T O N Y DAVIS, C D C R #J-76575, P l a in tif f , ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM COURT'S OCTOBER 28, 2008 ORDER PURSUANT TO FED.R.CIV.P. 60(b) [Doc. No. 6] Civil No. 08-1953 LAB (RBB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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P lain tiff has now filed a "Motion for Relief from Judgment Under Federal Rules of Civil P roc ed u re, Rule 60(b) [Doc. No. 6]. II. P LAINTIFF'S MOTION FOR RELIEF FROM THE COURT'S JUDGMENT U n d e r Rule 60, a motion for "relief from a final judgment, order or proceeding" may be filed within a "reasonable time," but usually must be filed "no more than a year after the entry o f the judgment or order or the date of the proceeding." FED.R.CIV.P. 60(c). Reconsideration u n d e r Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable n e g le c t; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the ju d g m e n t has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b). H ere , Plaintiff is seeking to sue the Bank whom he alleges wrongfully sold his mother's h o m e without notifying him after she passed away in 2005. Plaintiff filed an action against D e f en d a n t Bank of the West in 2006 which can be found in Davis v. Trust Company of the West, e t al., S.D. Cal. Civil Case No. 06-0793 W (WMc). In the 2006 action, Plaintiff was granted lea v e to amend on two occasions but ultimately failed to file a Second Amended Complaint. T h u s, his action was dismissed by the Court in 2006. Three years later Plaintiff attempted to file th is same action which this Court dismissed as duplicative of the 2006 action. Plaintiff claims th a t he did not know how to file this previous action due to his "physical and mental limitations, m e n ta l anguish and distress." See Pl.'s Mot. at 2. Even if the Court were to accept Plaintiff's a c tio n , filed three years later, he failed to heed any of the instructions that the Court issued to h im in 2006. Specifically, Plaintiff continues to seek damages against a private entity for v io la tio n of his Eighth Amendment rights pursuant to § 1983. As Plaintiff has been informed o n numerous occasions, Plaintiff has not alleged any action on the part of the Bank that sold his m o th e r' s home which was taken "under color of state law." See 42 U.S.C. § 1983. Private p a rtie s do not generally act under color of state law; thus, "purely private conduct, no matter how w ro n g f u l, is not within the protective orbit of section 1983." Ouzts v. Maryland Nat'l Ins. Co., 5 0 5 F.2d 547, 550 (9th Cir. 1974); see also Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1 9 9 1 ). /// -2-

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P la in tif f does not offer any facts as to why he waited three years to re-file an action he p re v io u sly litigated nor does he offer any rationale for waiting more than a year to challenge this C o u rt's dismissal. III. C ONCLUSION AND ORDER B a se d on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion for Relief f ro m the Court's October 28, 2008 Order [Doc. No. 6] pursuant to FED.R.CIV.P. 60(b) is D E N IE D . DATED: November 16, 2009

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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