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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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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LONNIE WILLIAMS,
CDCR #T-54378,

Civil No.
Plaintiff,

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ORDER:
(1) DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION; and

vs.

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(2) DENYING DEFENDANTS’ EX
PARTE MOTION TO STRIKE AS
MOOT

DANIEL PARAMO; R. OLSON;
E. MARRERO,

[ECF Nos. 31, 32]

Defendants.

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I.

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Procedural History
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to

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the Civil Rights Act, 42 U.S.C. § 1983.1 On January 30, 2013, Defendants filed a Motion for

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Judgment on the Pleadings pursuant to FED.R.CIV.P. 12(c) (ECF No. 24). Defendants argued,

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in part, that Plaintiff has failed to exhaust her administrative remedies prior to suit as required

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Because Plaintiff uses the title “Ms.” and identifies as female, the Court shall refer to Plaintiff as
“she.”
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by 42 U.S.C. § 1997e(a). Accordingly, the Court issued an Order providing Plaintiff notice of

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Defendants’ Motion for Judgment on the Pleadings pursuant to Wyatt v. Terhune 315 F.3d 1108

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(9th Cir. 2003) and set a briefing schedule. (ECF No. 25.) This notice informed Plaintiff that if

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she wished to oppose the Defendants’ Motion, “she should include in her Opposition whatever

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arguments, evidentiary material, or documents she may have to show that she did, in fact,

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exhaust all administrative remedies as were available to her prior to filing suit.” (Id. at 2, citing

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Wyatt, 315 F.3d at 1119-21.)

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The Court took this Motion under submission on April 5, 2013 after the time had lapsed

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to file an Opposition. (ECF No. 26). On May 29, 2013, this Court entered an Order granting

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Defendants’ Motion for Judgment on the pleadings. (ECF No. 28). On June 4, 2013, Plaintiff

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filed a document entitled “Objections to Defenses’ Motion to Dismiss.” (ECF No. 31.) The

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Court has construed this to be a Motion brought pursuant to Federal Rules of Civil Procedure

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60(b).

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Defendants’ Motion for Judgment on the Pleadings.” (ECF No. 32.) Following this, Plaintiff

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filed a “Motion and Declaration in Support of Her Opposition to Defendants’ Motion to

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Dismiss.” (ECF No. 37.)

Defendants have filed an “Ex Parte Motion to Strike Plaintiff’s Opposition to

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Plaintiff has also filed a Notice of Appeal with the Ninth Circuit Court of Appeals. (ECF

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No. 33.) The Ninth Circuit Court of Appeals has issued an Order to Show Cause (OSC) why

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Plaintiff’s IFP status should not be revoked in light of the fact that she has had three or more

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actions dismissed as frivolous or for failure to state a claim. See Williams v. Paramo, et al.,

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Court of Appeals Doc. No. 13-56004. Even though Plaintiff has filed a Notice of Appeal, this

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Court retains jurisdiction to rule on Plaintiff’s Motion. See FED.R.APP.P. 4(a)(4); Miller v.

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Marriott Int’l, Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002).

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II.

Plaintiff’s Motion

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A.

Standard of Review

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Under Rule 60, a motion for “relief from a final judgment, order or proceeding” may be

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filed within a “reasonable time,” but usually must be filed “no more than a year after the entry

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of the judgment or order or the date of the proceeding.” FED.R.CIV.P. 60(c). Reconsideration
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under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable

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neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the

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judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b).

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B.

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The Court’s Order, entered on May 29, 2013, found that Defendants had adequately

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shown that Plaintiff had failed to exhaust her administrative remedies with regard to all of the

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claims in her Complaint. (ECF No. 28 at 4.) The Court further found that by failing to even file

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an Opposition, there was no evidence submitted by Plaintiff to rebut Defendants’ showing. (Id.

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at 4.) However, Plaintiff now claims that she was unable to file a timely opposition due to the

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fact that she was “housed in the Department of Mental Health (DMH) in Vacaville until May

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of 2013.” (ECF No. 37 at 1.) The Court’s docket reflects that there was no change of address

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ever filed by Plaintiff nor was any mail from the Court to Plaintiff returned “undeliverable.”

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Regardless, the Court will now consider Plaintiff’s untimely Opposition.

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Plaintiff’s claims

In the Motion currently before this Court, Plaintiff maintains that she “attempted” to

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exhaust her available administrative remedies before filing this action. (ECF No. 31 at 2.)

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Plaintiff seeks an Order from this Court vacating the judgment in favor of Defendants and

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finding that “Plaintiff’s attempts to exhaust be deemed an exhaustion of administrative

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remedies.” (Id. at 3-4.) A review of these two documents submitted by Plaintiff demonstrate

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a failure to provide any evidentiary support to either vacate the previous judgment or find that

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she has properly exhausted her administrative remedies. Plaintiff does not provide any

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documents, let alone specific factual allegations, that would defeat the evidentiary support

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provided by Defendants in their original moving papers.

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In sum, a motion for reconsideration cannot be granted merely because Plaintiff is

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unhappy with the judgment, frustrated by the Court’s application of the facts to binding

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precedent or because she disagrees with the ultimate decision. See 11 Charles Alan Wright &

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Arthur R. Miller Federal Practice & Procedure 2d § 2858 (Supp. 2007) (citing Edwards v.

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Velvac, Inc., 19 F.R.D. 504, 507 (D. Wis. 1956)). Plaintiff has failed to provide any factual or

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evidentiary support for any basis under Rule 60(b) that would justify vacating the Court’s May

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29, 2013 Order.

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III.

Conclusion and Order

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Accordingly, Plaintiff’s Motion brought pursuant to FED.R.CIV.P. 60 [ECF No. 31] is

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hereby DENIED. Defendants’ Motion to Strike Plaintiff’s late Opposition [ECF No. 32] is

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DENIED as moot.

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IT IS SO ORDERED.
DATED: September 3, 2013

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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