Paschelke v. Doe et al

Filing 29

ORDER denying Plaintiff's 28 Motion for Relief from Order Pursuant to FRCP 60(b). Signed by Judge Irma E. Gonzalez on 7/28/2010. (All non-registered users served via U.S. Mail Service)(jah)

-CAB Paschelke v. Doe et al

Doc. 29

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 On June 30, 2010, this Court issued an Order granting the County of San Diego Central Detention Facility's Motion to Dismiss. See June 30, 2010 Order at 4. Plaintiff has now filed a "Notice of Motion and Motion Pursuant to FED.R.CIV.P. 60(b)(1) and (6) for Relief from Order of June 30, 2010." [Doc. No. 28]. Specifically, Plaintiff objects to the dismissal of Defendant, San Diego County Central Detention Facility.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
ELIJAH PASCHELKE, BOP #05698-298, Plaintiff, vs. JOHN DOE, et al., Defendants. Civil No. 09cv2191 IEG (CAB)

ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM ORDER PURSUANT TO FED.R.CIV.P. 60(b) [Doc. No. 28]

I.

Plaintiff's Motion pursuant to FED.R.CIV.P. 60(b) A. Standard of Review

Under 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 of the judgment or order or the date of the proceeding." FED.R.CIV.P. 60(c). Reconsideration
H:\'09-10\Pro se\09cv2191-Deny 60(b).wpd

-1-

09cv2191 IEG (CAB)

Dockets.Justia.com

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

under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b). B. Discussion

Plaintiff contends that the Court erred in dismissing the San Diego County Central Detention Facility as a Defendant. See Pl.'s Mot. at 3. In the Court's June 30, 2010 Order, the Court found that "dismissal of the San Diego County Central Detention Facility is appropriate as this Defendant is not a `person' subject to suit under § 1983." See June 30, 2010 Order at 2. Specifically, the Court informed Plaintiff that "[w]hile local governmental units, such as counties or municipalities, are considered `persons'" within the meaning of § 1983, "municipal departments and sub-units, including police departments, are not." Id. (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989); Monell v. Dept. of Social Services, 436 U.S. 658, 690-91 & n. 54 (1978); United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005)). In his Motion, Plaintiff argues that the above case law is "no longer applicable" and instead he argues that the Court should consider the unpublished District Court opinion found in Talada v. City of Martinez, 2009 WL 382758 (N.D. Feb. 12, 2009). In Talada, the Court found that the City of Martinez Police Department could be sued because the "Ninth Circuit has held that police departments in California are public entities pursuant to [California Code] Section 811.2". Id. at *2. This may be correct, however, these line of cases do not apply because Plaintiff is attempting to sue a detention facility and not a police or sheriff department. Moreover, even if the Court were to find the detention facility was an extension of the San Diego Sheriff's Department, which is not currently before the Court, it would be a redundant Defendant. It is well settled that an action against a municipal department should be treated as an action against the municipality. In this case, Plaintiff is already suing Sheriff Kolender in his official capacity which is also treated as an action against the County of San Diego. See June 30, 2010 Order at 3 (citing Kentucky v. Graham, 473 U.S. 159 (1985)). The claims against the County of San Diego are already at issue before this Court.

H:\'09-10\Pro se\09cv2191-Deny 60(b).wpd

-2-

09cv2191 IEG (CAB)

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

Accordingly, the Court finds that Plaintiff has provided no newly discovered evidence, has failed to show clear error or that the Court rendered a manifestly unjust decision, and has further failed to identify any intervening changes in controlling law that would demand reconsideration of the Court's June 30, 2010 Order. II. Conclusion and Order In light of the foregoing, the Court hereby DENIES Plaintiff's Motion for Relief from Order pursuant to FED.R.CVI.P. 60(b). IT IS SO ORDERED.

DATED: July 28, 2010 IRMA E. GONZALEZ, Chief Judge United States District Court

H:\'09-10\Pro se\09cv2191-Deny 60(b).wpd

-3-

09cv2191 IEG (CAB)