Williams v. Paramo et al

Filing 39

ORDER: (1) Denying Plaintiff's 31 Motion for Reconsideration; and (2) Denying Defendants' 32 Ex Parte Motion to Strike as Moot. Signed by Judge Barry Ted Moskowitz on 9/3/2013. (All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 LONNIE WILLIAMS, CDCR #T-54378, Civil No. Plaintiff, 13 14 ORDER: (1) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION; and vs. 15 16 17 (2) DENYING DEFENDANTS’ EX PARTE MOTION TO STRIKE AS MOOT DANIEL PARAMO; R. OLSON; E. MARRERO, [ECF Nos. 31, 32] Defendants. 18 12cv0113 BTM (RBB) 19 20 21 22 I. 23 Procedural History Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 24 the Civil Rights Act, 42 U.S.C. § 1983.1 On January 30, 2013, Defendants filed a Motion for 25 Judgment on the Pleadings pursuant to FED.R.CIV.P. 12(c) (ECF No. 24). Defendants argued, 26 in part, that Plaintiff has failed to exhaust her administrative remedies prior to suit as required 27 28 1 Because Plaintiff uses the title “Ms.” and identifies as female, the Court shall refer to Plaintiff as “she.” 1 12cv0113 BTM (RBB) 1 by 42 U.S.C. § 1997e(a). Accordingly, the Court issued an Order providing Plaintiff notice of 2 Defendants’ Motion for Judgment on the Pleadings pursuant to Wyatt v. Terhune 315 F.3d 1108 3 (9th Cir. 2003) and set a briefing schedule. (ECF No. 25.) This notice informed Plaintiff that if 4 she wished to oppose the Defendants’ Motion, “she should include in her Opposition whatever 5 arguments, evidentiary material, or documents she may have to show that she did, in fact, 6 exhaust all administrative remedies as were available to her prior to filing suit.” (Id. at 2, citing 7 Wyatt, 315 F.3d at 1119-21.) 8 The Court took this Motion under submission on April 5, 2013 after the time had lapsed 9 to file an Opposition. (ECF No. 26). On May 29, 2013, this Court entered an Order granting 10 Defendants’ Motion for Judgment on the pleadings. (ECF No. 28). On June 4, 2013, Plaintiff 11 filed a document entitled “Objections to Defenses’ Motion to Dismiss.” (ECF No. 31.) The 12 Court has construed this to be a Motion brought pursuant to Federal Rules of Civil Procedure 13 60(b). 14 Defendants’ Motion for Judgment on the Pleadings.” (ECF No. 32.) Following this, Plaintiff 15 filed a “Motion and Declaration in Support of Her Opposition to Defendants’ Motion to 16 Dismiss.” (ECF No. 37.) Defendants have filed an “Ex Parte Motion to Strike Plaintiff’s Opposition to 17 Plaintiff has also filed a Notice of Appeal with the Ninth Circuit Court of Appeals. (ECF 18 No. 33.) The Ninth Circuit Court of Appeals has issued an Order to Show Cause (OSC) why 19 Plaintiff’s IFP status should not be revoked in light of the fact that she has had three or more 20 actions dismissed as frivolous or for failure to state a claim. See Williams v. Paramo, et al., 21 Court of Appeals Doc. No. 13-56004. Even though Plaintiff has filed a Notice of Appeal, this 22 Court retains jurisdiction to rule on Plaintiff’s Motion. See FED.R.APP.P. 4(a)(4); Miller v. 23 Marriott Int’l, Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002). 24 II. Plaintiff’s Motion 25 A. Standard of Review 26 Under Rule 60, a motion for “relief from a final judgment, order or proceeding” may be 27 filed within a “reasonable time,” but usually must be filed “no more than a year after the entry 28 of the judgment or order or the date of the proceeding.” FED.R.CIV.P. 60(c). Reconsideration 2 12cv0113 BTM (RBB) 1 under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable 2 neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the 3 judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b). 4 B. 5 The Court’s Order, entered on May 29, 2013, found that Defendants had adequately 6 shown that Plaintiff had failed to exhaust her administrative remedies with regard to all of the 7 claims in her Complaint. (ECF No. 28 at 4.) The Court further found that by failing to even file 8 an Opposition, there was no evidence submitted by Plaintiff to rebut Defendants’ showing. (Id. 9 at 4.) However, Plaintiff now claims that she was unable to file a timely opposition due to the 10 fact that she was “housed in the Department of Mental Health (DMH) in Vacaville until May 11 of 2013.” (ECF No. 37 at 1.) The Court’s docket reflects that there was no change of address 12 ever filed by Plaintiff nor was any mail from the Court to Plaintiff returned “undeliverable.” 13 Regardless, the Court will now consider Plaintiff’s untimely Opposition. 14 Plaintiff’s claims In the Motion currently before this Court, Plaintiff maintains that she “attempted” to 15 exhaust her available administrative remedies before filing this action. (ECF No. 31 at 2.) 16 Plaintiff seeks an Order from this Court vacating the judgment in favor of Defendants and 17 finding that “Plaintiff’s attempts to exhaust be deemed an exhaustion of administrative 18 remedies.” (Id. at 3-4.) A review of these two documents submitted by Plaintiff demonstrate 19 a failure to provide any evidentiary support to either vacate the previous judgment or find that 20 she has properly exhausted her administrative remedies. Plaintiff does not provide any 21 documents, let alone specific factual allegations, that would defeat the evidentiary support 22 provided by Defendants in their original moving papers. 23 In sum, a motion for reconsideration cannot be granted merely because Plaintiff is 24 unhappy with the judgment, frustrated by the Court’s application of the facts to binding 25 precedent or because she disagrees with the ultimate decision. See 11 Charles Alan Wright & 26 Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2007) (citing Edwards v. 27 Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Plaintiff has failed to provide any factual or 28 3 12cv0113 BTM (RBB) 1 evidentiary support for any basis under Rule 60(b) that would justify vacating the Court’s May 2 29, 2013 Order. 3 III. Conclusion and Order 4 Accordingly, Plaintiff’s Motion brought pursuant to FED.R.CIV.P. 60 [ECF No. 31] is 5 hereby DENIED. Defendants’ Motion to Strike Plaintiff’s late Opposition [ECF No. 32] is 6 DENIED as moot. 7 8 IT IS SO ORDERED. DATED: September 3, 2013 9 10 BARRY TED MOSKOWITZ, Chief Judge United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 12cv0113 BTM (RBB)

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