Roettgen v. Paramo et al

Filing 18

ORDER Denying 17 Motion Requesting Court to Vacate Order. Signed by Judge Larry Alan Burns on 1/11/2019. (All non-registered users served via U.S. Mail Service) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN ROETTGEN,

Case No.: 3:16-cv-01806-LAB-BGS
Plaintiff,

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ORDER DENYING MOTION
REQUESTING COURT TO VACATE
ORDER

v.
D. PARAMO, ET AL.,
Defendant.

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I.

Procedural History

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Plaintiff, an inmate currently incarcerated at the California State Prison –

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Sacramento located in Represa, California, initially filed this action on July 11, 2016. (ECF

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No. 1.) On July 21, 2016, this Court granted Plaintiff’s Motion to Proceed In Forma

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Pauperis (“IFP”) and dismissed his Complaint (“FAC”) pursuant to 28 U.S.C.

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§ 1915(e)(2). (ECF No. 3.) The Court found a number of deficiencies in his pleading but

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nevertheless, Plaintiff was granted forty-five (45) days leave to file an amended complaint.

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(Id. at 10-11.)

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3:16-cv-01806-LAB-BGS

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On February 13, 2017, nearly seven months after the Court dismissed this action,

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Plaintiff filed a “Motion for Copy of Court Order, Reinstate Case and for 45 days in which

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to file First Amended Complaint.” (ECF No. 5.) The Court denied Plaintiff’s Motion to

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reopen the case but granted him additional time to file an amended complaint. (ECF No.

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5.) The Court also directed the Clerk of Court to mail a copy of the Court’s July 21, 2016

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Order to Plaintiff. (Id.) Plaintiff then filed a second extension of time and claimed that

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prison officials have confiscated his legal materials. (ECF No. 8.) The Court granted

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Plaintiff’s request for additional time on August 1, 2017. (ECF No. 9.) However, Plaintiff

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waited an additional year to bring his third request for an extension of time to file his First

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Amended Complaint. (ECF No. 11.)

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On September 13, 2018, based on Plaintiff’s allegations in his motion, the Court

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found good cause to grant Plaintiff one final extension of time in which to comply with its

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July 21, 2016 Order. (ECF No. 12.) Plaintiff was informed that if he failed to comply the

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Court’s Order within this timeframe, the Court would enter a final order of dismissal.

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Moreover, no further extensions of time would be granted absent a showing of exceptional

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circumstances. (Id.)

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After that timeframe passed yet again without a filing submitted by Plaintiff, the

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Court DISMISSED the entire action for the reasons set forth in the Court’s July 21, 2016

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Order and for his failure to prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with

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the Court’s September 13, 2018 Order. (ECF No. 13.) Judgment was entered on November

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7, 2018. (ECF No. 14.)

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On November 13, 2018, the Court received Plaintiff’s First Amended Complaint

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(“FAC”). (ECF No. 15.) The Court rejected this filing on the grounds that the “Court

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cannot entertain Roettgen’s motion or permit further amendments. (Id. citing Lindauer v.

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Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996).) On January 2, 2019, Plaintiff filed a “Motion

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Requesting Court to Vacate Order Dismissing Case” pursuant to Fed. R. Civ. P. 60(b).

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3:16-cv-01806-LAB-BGS

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II.

Plaintiff’s Motion pursuant to FED. R. CIV. P. 60(b)

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A.

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

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

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the entry of the judgment or order or the date of the proceeding.” FED. R. CIV. P. 60(c)(1).

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Rule 60(b) provides for reconsideration where one or more of the following is

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shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

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evidence which by due diligence could not have been discovered before the court's

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decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied; (6) any other reason justifying relief. FED. R. CIV. P. 60(b); School Dist. 1J

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v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

Standard of Review

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“Although the application of Rule 60(b) is committed to the discretion of the district

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courts . . ., as a general matter, Rule 60(b) is remedial in nature and must be liberally

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applied.” TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695-96 (9th Cir. 2001)

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(internal quotation marks and ellipsis omitted). Nevertheless, Rule 60(b) provides for

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extraordinary relief and may be invoked only upon a showing of “exceptional

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circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir. 1994).
Plaintiff’s Motion

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B.

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Despite Plaintiff’s repeated failure to comply with Court deadlines, Plaintiff was

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granted one final extension of time on September 13, 2018. (See ECF No. 12.) Plaintiff

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claims that he had prepared his FAC for filing with the Court and “planned to make his

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copies of his FAC on October 22, 2018” at the prison’s law library. (ECF No. 17 at 2-3.)

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However, he learned on October 22, 2018 that the library was closed and he was “unable

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to obtain his copies until November 6, 2018.” (Id. at 3.) Plaintiff “promptly mailed the

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FAC on the same day.” (Id.)

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As stated above, the Court did receive this proposed FAC on November 13, 2018

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but it was rejected as untimely on November 15, 2018. (See ECF No. 15 at 1.) Plaintiff

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3:16-cv-01806-LAB-BGS

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then waited until December 18, 20181 to prepare the Motion currently before the Court.

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(See ECF No. 17 at 38.) Plaintiff filed his original Complaint two and a half years ago.

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(See ECF No. 1.) The procedural history of this case shows quite clearly that Plaintiff has

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engaged in unreasonable delay for the past two years. Plaintiff’s only excuse for failing to

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file his FAC in a timely matter is his assertion that the law library was closed on the day of

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his choosing to make photocopies of his FAC. (See ECF No. 17 at 3.) Pursuant to the

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Court’s September 13, 2018 Order, Plaintiff’s FAC was due to be filed with the Court on

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October 28, 2018. (ECF No. 12 at 2.)

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“What constitutes ‘reasonable time’ depends on the facts of each case, taking into

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consideration the interest in finality, the reason for delay, the practical ability of the litigant

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to learn earlier of the grounds relied upon, and prejudice to the other parties.” Lemoge v.

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United States, 587 F.3d 1188, 1196-97 (9th Cir. 2009) (quoting Ashford v. Steuart, 657

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F.2d 1053, 1055 (9th Cir. 1981) (per curiam)).

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Plaintiff acknowledges that this Court was “likely correct to reject Plaintiff’s post-

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dismissal motion for extension of time.” (ECF No. 17 at 2.) Plaintiff never offers any

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rational reason why he did not seek an extension of time when he knew that the law library

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was closed. Instead, he waited for almost two months to file this Motion. The Court finds

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that Plaintiff, throughout this action, has unreasonably delayed in complying with the

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Court’s Orders. Therefore, Plaintiff’s Motion to Vacate the Court’s November 7, 2018

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Order is DENIED.

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Plaintiff dated his Motion on December 18, 2018. Accordingly, the Court finds that this Motion is
deemed “filed” on December 18, 2108. Houston v. Lack, 487 U.S. 266, 270-72 (1988) (notice of appeal
filed by a pro se prisoner is deemed to be “filed” when it is delivered to prison authorities for forwarding
to the district court); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“Houston mailbox rule
applies to § 1983 suits filed by pro se prisoners.”).
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3:16-cv-01806-LAB-BGS

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III.

Conclusion and Order

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For reasons stated, Plaintiff’s motion for relief from the Court’s November 7, 2018

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Order dismissing his case, and request to vacate the November 7, 2018 Order pursuant to

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FED. R. CIV. P. 60(b) is DENIED.

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Dated: January 11, 2019
Hon. Larry Alan Burns
United States District Judge

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3:16-cv-01806-LAB-BGS