Rogers v. Gilbert et al

Filing 15

ORDER: The Motion to Vacate the 11/16/2009 Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) and the Motion for Leave to File a SAC (Dkt # 14 ) are denied. Signed by Judge William Q. Hayes on 8/25/2015. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TYRONE ROGERS,

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vs.
JANE L. GILBERT, et al.,

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CASE NO. 09cv01585-WQH-DHB
Plaintiff,

ORDER

Defendant.

14 HAYES, Judge:
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The matters before the Court are the Motion to Vacate the November 16, 2009

16 Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) and Motion for Leave
17 to File a SAC (ECF No. 14) filed by Plaintiff Tyrone Rogers.
18 I. Background
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On July 20, 2009, Plaintiff Tyrone Rogers commenced this action by filing the

20 Complaint in this Court pursuant to 42 U.S.C. section 1983 (ECF No. 1), accompanied
21 by a motion to proceed in forma pauperis (“IFP”) (ECF No. 2) and a motion to appoint
22 counsel (ECF No. 3). On July 30, 2009, the Court issued an Order, granting the motion
23 to proceed IFP, denying the motion to appoint counsel, and dismissing the Complaint
24 without prejudice for failure to state a claim. (ECF No. 4).
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On September 11, 2009, Plaintiff filed the First Amended Complaint, the most

26 recent pleading in this case. (ECF No. 5). The First Amended Complaint alleged that
27 several San Diego Police Officers conspired to falsify testimony and perjure themselves
28 during Plaintiff’s criminal trial which resulted in his criminal conviction in 1994. On
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1 November 13, 2009, the Court issued an Order dismissing the First Amended
2 Complaint without prejudice pursuant to 28 U.S.C. sections 1915(e)(2)(b) and
3 1915A(b). (ECF No. 6). The Court concluded that the First Amended Complaint failed
4 to state a claim because Plaintiff’s claims, if successful, “would necessarily call into
5 question the validity of his conviction and continuing incarceration.” Id. at 4. The
6 Court denied leave to amend and ordered the Clerk of the Court to close the case. On
7 November 16, 2009, the Clerk of the Court entered judgment. (ECF No. 7).
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On June 9, 2015, Plaintiff filed a “Motion to Redress (§1343(a)(3)), Dismissal

9 of the First Amended Complaint Under §§ 1983, 1985(3), 1986, Due Process and Equal
10 Protection.” (ECF No. 9). Plaintiff contended:
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Due to Plaintiff’s insufficient time, access to court, and insufficient
resources in Centinela State Prison Law Library, until the installation of
valuable computers in 2014, so Plaintiff brings this redress to the Court.
Yet Plaintiff in 2009, had already addressed this Court concerning
Defendants forgery and conspiracy to imprison him in violation of the due
process and equal protection clause of our constitution.
Plaintiff restates his claim with legal authority upon which relief may
be granted and in which Defendants are not immune. Since Plaintiff is not
asking this Court to reverse his state conviction nor provide compensatory
damages, but seek [sic] damages by relief in punitive damages awarded
against each defendant, then Plaintiff is not attacking the validity of
underlying criminal proceedings. Therefore, Plaintiff does not have to
show that his conviction has already been invalidated.
(ECF No. 9 at 5). Plaintiff’s motion concluded: “Plaintiff prays that this Court will
overturn its decision to also further the justice this state deserves.” Id. at 10.
On June 19, 2015, the Court issued an Order denying the Motion to Redress.
(ECF No. 12). The Order stated: “In order to reopen this case, Plaintiff must file: (1)
a motion to vacate the November 16, 2009 Judgment pursuant to Federal Rule of Civil
Procedure 60(b)(6); and (2) a motion for leave to file a second amended complaint,
accompanied by a proposed second amended complaint.” Id. at 3. On July 28, 2015,
Plaintiff filed the Motion to Vacate the November 16, 2009 Judgment and the Motion
for Leave to File a SAC. (ECF No. 14).
II. Motion to Vacate the November 16, 2009 Judgment
Plaintiff contends that the Court has discretion to vacate the November 16, 2009
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1 Judgment for “good cause” when “appropriate to accomplish justice.” (ECF No. 14 at
2 2). Plaintiff asserts that the purpose of this motion is “to enable Plaintiff to challenge
3 the legal sufficiency of the Court’s decision to dismiss his FAC, and that reasonable
4 time, Rule 60(b)(6), was elapsed before he learned about the extra-ordinary situation
5 he was placed in.” Id. at 3. Plaintiff contends that the Court should vacate the
6 November 16, 2009 Judgment because “conspiracy is [a] legal basis to state a claim
7 upon which relief may be granted.” Id.
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Plaintiff also contends that he “did not have material available to argue against

9 the Court’s 2009 Judgment.” Id. Plaintiff asserts that he had “out dated” and “limited
10 legal material” to reference until 2014, when Centinela State Prison installed valuable
11 computers. Id. Plaintiff asserts that he is continuing to “suffer from Defendant[’s]
12 alleged intentional misconduct of alleged conspiracy....” Id. at 4.
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Federal Rule of Civil Procedure 60(b)(6) provides: “On a motion and just terms,

14 the court may relieve a party or its legal representative from a final judgment, order, or
15 proceeding for ... (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
16 “Rule 60(b)(6) has been used sparingly as an equitable remedy to prevent manifest
17 injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.
18 1993). “[A] movant seeking relief under Rule 60(b)(6) [must show] ‘extraordinary
19 circumstances’ justifying the reopening of a final judgment.” Gonzalez v. Crosby, 545
20 U.S. 524, 537 (2005) (citations omitted). “The long-standing rule in this circuit is that,
21 ‘clause (6) and the preceding clauses are mutually exclusive; a motion brought under
22 clause (6) must be for some reason other than the five reasons preceding it under the
23 rule.” Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088-89 (9th Cir. 2001). The Ninth
24 Circuit has articulated the following six factor test for Rule 60(b)(6) motions: (1)
25 whether there has been a change in the law; (2) the movant’s exercise of diligence in
26 pursuing his or her claim; (3) the parties’ reliance interest in the finality of the case; (4)
27 the delay between the judgment and the motion for Rule 60(b)(6) relief; (5) the
28 closeness of the relationship between the decision resulting in the original judgment and
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1 the subsequent decision that represents a change in the law; and (6) comity. Jones v.
2 Ryan, 733 F.3d 825, 838-40 (9th Cir. 2013).
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Rule 60(c) provides that “[a] motion under Rule 60(b) must be made within a

4 reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of
5 the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(b). “What
6 constitutes ‘reasonable time’ depends upon the facts of each case, taking into
7 consideration the interest in finality, the reason for delay, the practical ability of the
8 litigant to learn earlier of the grounds relied upon, and prejudice to the other parties.”
9 Lemoge v. United States, 587 F.3d 1188, 1196 (9th Cir. 2009) (quoting Ashford v.
10 Seuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam)).
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As stated in the Court’s June 19, 2015 Order, “[t]o the extent Plaintiff seeks

12 reconsideration of the Court’s November 13, 2009 Order, Plaintiff’s motion is denied.”
13 (ECF No. 12 at 2).
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Plaintiff filed the pending motion on July 28, 2015, approximately five and one

15 half years after the First Amended Complaint was dismissed without prejudice and
16 without leave to amend and judgment was entered in this case. First, the Court finds
17 that “the interest in finality” is great where, as here, Plaintiff seeks relief from judgment
18 for the first time approximately five and one half years after dismissal of the First
19 Amended Complaint and judgment. Lemoge, 587 F.3d at 1196. Second, although
20 Plaintiff has provided a reason for the delay (outdated and limited legal material),
21 Plaintiff has failed to explain why he was able to file documents in this case from July
22 until September 2009, but unable to do so from September 2009 until June 2015. Third,
23 Plaintiff does not assert that he was unable to “learn earlier of the grounds relied upon”
24 in the Court’s November 13, 2009 Dismissal Order. Id. Finally, the Court finds that
25 prejudice to the Defendants in this case would be great. Service has not been
26 effectuated in this action, which commenced in 2009, and, if this case were reopened,
27 Defendants would be required to respond to allegations related to conduct that occurred
28 prior to July 2009. The Court concludes that Plaintiff’s Rule 60(b)(6) motion is
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1 untimely.
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Even assuming that Plaintiff’s motion is timely, the Court concludes that Plaintiff

3 has failed to satisfy the Rule 60(b)(6) “extraordinary circumstances” standard. Plaintiff
4 has not shown diligence in pursuing his claim between November 2009 and June 2015
5 or a change in the law that would justify revisiting the Court’s November 13, 2009
6 Dismissal Order. A five and one half year delay is substantial, and Plaintiff has failed
7 to sufficiently explain this delay.
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Plaintiff’s Motion to Vacate the November 16, 2009 Judgment pursuant to

9 Federal Rule of Civil Procedure 60(b)(6) is denied. Accordingly, Plaintiff’s Motion for
10 Leave to File a SAC is also denied.1
11 III. Conclusion
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IT IS HEREBY ORDERED that the Motion to Vacate the November 16, 2009

13 Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) and the Motion for
14 Leave to File a SAC (ECF No. 14) are DENIED.
15 DATED: August 25, 2015
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WILLIAM Q. HAYES
United States District Judge

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Even if judgment was never entered in this case, leave to amend is not
26 warranted. In determining whether to allow an amendment, a court considers whether
there is “undue delay,” “bad faith,” “undue prejudice to the opposing party,” or “futility
27 of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). For the reasons discussed
above, undue delay and prejudice weigh against leave to amend. After reviewing the
28 proposed second amended complaint, leave to amend would be futile, for the reasons
stated in the Court’s November 13, 2009 Dismissal Order.
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