Smith v. Gonazalez et al

Filing 17

ORDER DENYING RULE 60(b) MOTION (ECF No. 16), AFFIRMING ORDER TO AMEND OR VOLUNTARILY DISMISS (ECF No. 13), ADOPTING REPORT AND RECOMMENDATION (ECF No. 14), DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (ECF No. 5), AND RE-NOTING DEADLINE. Amended Complaint Deadline reset for 11/13/2017. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator) **15 PAGES, PRINT ALL** (Jess Smith, Prisoner ID: 739951) (Attachments: # 1 Amended Complaint Form)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JESS RICHARD SMITH,
NO: 4:17-CV-5082-RMP
Plaintiff,

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v.
TONY GONZALEZ, S. BUTTICE, S.
SUNDBERG, ROY GONZALEZ,
LISA MORROW, R. HERZOG, J.
AIYEKU, and WASHINGTON
DEPARTMENT OF
CORRECTIONS,

ORDER DENYING RULE 60(b)
MOTION, AFFIRMING ORDER TO
AMEND OR VOLUNTARILY
DISMISS, ADOPTING REPORT
AND RECOMMENDATION,
DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER, AND RE-NOTING
DEADLINE

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Defendant.
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BEFORE THE COURT is Magistrate Judge Dimke’s Report and

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Recommendation to deny Plaintiff’s Motion for Temporary Restraining Order.

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ECF No. 14. Plaintiff, Jess Richard Smith, a prisoner at the Washington State

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Penitentiary, is proceeding pro se and in forma pauperis; Defendants have not

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been served.

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ORDER DENYING RULE 60(b) MOTION, AFFIRMING ORDER TO AMEND
OR VOLUNTARILY DISMISS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER, AND RE-NOTING DEADLINE -- 1

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Mr. Smith did not file objections to the Report and Recommendation and his

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deadline for doing so was August 29, 2017. Rather, Mr. Smith filed a document

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titled, “Motion for Relief from Order CR 60,” ECF No. 16, in which he challenges

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the Order directing him to amend or voluntarily dismiss, ECF NO. 13. Mr.

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Smith’s Motion was noted for hearing on September 22, 2017, but considered

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without oral argument on the date signed below.

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Mr. Smith seeks relief under Fed. R. Civ. P. 60 from the Court's screening

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Order, claiming the Magistrate Judge is “acting as an opposing party by raising

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Rule 12 defenses for the defendants.” ECF No. 16 at 2. Mr. Smith’s argument

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lacks merit. A federal court is statutorily obligated to screen complaints brought

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by prisoners. 28 U.S.C. §1915A(a). Although Mr. Smith was advised of the

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deficiencies of his complaint, he has not amended or dismissed it.

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Rule 60(b) provides that “[o]n motion and upon such terms as are just, the

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court may relieve a party . . . from a final judgment, order, or proceeding for the

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following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

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newly discovered evidence that, with reasonable diligence could not have been

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discovered in time to move for a new trial under Rule 59(b); . . . or (6) any other

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reason that justifies relief.” Relief under Rule 60 “is to be used sparingly as an

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equitable remedy to prevent manifest injustice and is to be utilized only where

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extraordinary circumstances exist.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir.

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ORDER DENYING RULE 60(b) MOTION, AFFIRMING ORDER TO AMEND
OR VOLUNTARILY DISMISS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER, AND RE-NOTING DEADLINE -- 2

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2008) (internal quotation marks and citation omitted). No final judgment or order

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has been entered in this action. Therefore, Rule 60(b) is not applicable.

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To the extent Mr. Smith is challenging Magistrate Judge Dimke’s Order to

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Amend or Voluntarily Dismiss under 28 U.S.C. § 636(A), he has failed to show

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that this Order is clearly erroneous or contrary to law. Therefore, IT IS

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ORDERED Plaintiff’s Motion, ECF No. 16, will be DENIED and the Order to

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Amend or Voluntarily Dismiss, ECF No. 13, will be AFFIRMED.

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On August 15, 2017, Magistrate Judge Dimke recommended denying

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Plaintiff’s Motion for Temporary Restraining Order, ECF No. 5, as Mr. Smith had

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not yet presented a legally sufficient complaint and the Court was without

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jurisdiction to grant the Motion. There being no objections, IT IS ORDERED the

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Report and Recommendation, ECF No. 14, will be ADOPTED in its entirety and

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the Motion for Temporary Restraining Order, ECF No. 5, will be DENIED.

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Accordingly, IT IS HEREBY ORDERED:

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1. Plaintiff’s Motion for Relief from Order CR 60, ECF No. 16, is

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DENIED.
2. The Order to Amend or Voluntarily Dismiss, ECF No. 13, is
AFFIRMED.

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ORDER DENYING RULE 60(b) MOTION, AFFIRMING ORDER TO AMEND
OR VOLUNTARILY DISMISS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER, AND RE-NOTING DEADLINE -- 3

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3. Magistrate Judge Dimke’s Report and Recommendation to Deny Motion

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for Temporary Restraining Order, ECF No. 14, is ADOPTED in its

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entirety.

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4. Plaintiff’s Motion for Temporary Restraining Order, ECF No. 5, is
DENIED.
5. The Clerk of Court shall RE-NOTE the deadline to Amend or
Voluntarily Dismiss to thirty (30) days after the date of this Order.
The District Court Clerk is directed to enter this Order and provide a copy to
Plaintiff, along with a form Motion to Voluntarily Dismiss Complaint and a civil
rights complaint form.
DATED October 12, 2017.

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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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ORDER DENYING RULE 60(b) MOTION, AFFIRMING ORDER TO AMEND
OR VOLUNTARILY DISMISS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION FOR TEMPORARY
RESTRAINING ORDER, AND RE-NOTING DEADLINE -- 4

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JESS RICHARD SMITH,
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NO: 4:17-CV-5082-RMP
Plaintiff,
MOTION TO VOLUNTARILY
DISMISS COMPLAINT

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v.
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TONY GONZALEZ, S. BUTTICE, S.
SUNDBERG, ROY GONZALEZ,
LISA MORROW, R. HERZOG, J.
AIYEKU, and WASHINGTON
DEPARTMENT OF CORRECTIONS,

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Defendants.
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Plaintiff JESS RICHARD SMITH requests the Court grant his Motion to

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Voluntarily Dismiss the Complaint pursuant to Rule 41(a), Federal Rules of Civil

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Procedure. Plaintiff is proceeding pro se; Defendants have not been served in this

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action.

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DATED this

day of

2017.
_______________________________
JESS RICHARD SMITH

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MOTION TO VOLUNTARILY DISMISS COMPLAINT -- 1