(PC) Baker v. Grider

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 TIMOTHY RAY BAKER, No. 2:18-CV-2480-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 R. GRIDER, et al., 15 Defendants. [16] 17 Plaintiff, a prisoner proceeding pro se, brought this civil rights action pursuant to [18] 42 U.S.C. § 1983 . Final judgment was entered on April 8, 2019. Pending before the Court in this 19 closed case is Plaintiff’s motion to re-open, ECF No. 12, which has been referred to the 20 undersigned by the District Judge, ECF No. 13. 21 The Court may grant reconsideration under Federal Rules of Civil Procedure 22 59(e) and 60. Generally, a motion for reconsideration of a final judgment is appropriately 23 brought under Federal Rule of Civil Procedure 59(e). See Backlund v. Barnhart, 778 F.2d 24 1386, 1388 (9th Cir. 1985) (discussing reconsideration of summary judgment); see also 25 Schroeder v. McDonald, 55 F.3d 454, 458-59 (9th Cir. 1995). The motion must be filed no 26 / / / 27 / / / 28 / / / 1 later than twenty-eight (28) days after entry of the judgment.1 See Fed. R. Civ. P. 59(e). 2 Under Rule 59(e), three grounds may justify reconsideration: (1) an intervening change in 3 controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or 4 prevent manifest injustice.2 See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 5 656, 665 (E.D. Cal. 1986), rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. 6 denied, 486 U.S. 1015 (1988); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656 , 7 665 (9th Cir. 1999); accord School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255 , 1263 (9th Cir. 8 1993). 9 Under Rule 60(a), the Court may grant reconsideration of final judgments and any 10 order based on clerical mistakes. Relief under this rule can be granted on the Court’s own 11 motion and at any time. See Fed. R. Civ. P. 60(a). However, once an appeal has been filed and 12 docketed, leave of the appellate court is required to correct clerical mistakes while the appeal is 13 pending. See id. 14 Under Rule 60(b), the Court may grant reconsideration of a final judgment and 15 any order based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 16 discovered evidence which, with reasonable diligence, could not have been discovered within ten 17 days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an opposing party. 18 See Fed. R. Civ. P. 60(b)(1)-(3). A motion for reconsideration on any of these grounds must be 19 brought within one year of entry of judgment or the order being challenged. See Fed. R. Civ. P. 20 60(c)(1). Under Rule 60(b), the Court may also grant reconsideration if: (1) the judgment is 21 void; (2) the judgement has been satisfied, released, or discharged, an earlier judgment has been 22 reversed or vacated, or applying the judgment prospectively is no longer equitable; and (3) any 23 other reason that justifies relief. See Fed. R. Civ. P. 60(b)(4)-(6). A motion for reconsideration [24] 1 Pursuant to Houston v. Lack, 487 U.S. 266 (1988), for pro se prisoner litigants 25 seeking reconsideration, the court calculates the 28-day period from the date the motion was delivered to prison authorities for mailing to the court. Otherwise, the 28-day period is 26 calculated based on the date the motion for reconsideration is actually filed. 2 If reconsideration is sought based on new evidence which could not have been 27 discovered through due diligence in time to move for reconsideration under Rule 59(e), relief may be available under Federal Rule of Civil Procedure 60(b)(2). A motion under Rule 60(b)(2) may 28 not be brought more than one year after entry of judgment. 1 || on any of these grounds must be brought “within a reasonable time.” Fed. R. Civ. P. 60(c)(1). 2 This case was dismissed without prejudice for lack of prosecution and failure to 3 || comply with court rules and orders in April 2019. See ECF No. 11 Gudgment). Over four years 4 | later, Plaintiff filed the currently pending motion on July 28, 2023. See ECF No. 12. In his 5 | motion, Plaintiff seeks leave of Court to “refile” his case. See id. at 1. Because the case was 6 || dismissed without prejudice, Plaintiff does not, and has never, required leave of court to re-file. 7 || Further, given the various deadlines for filing outlined above, the Court concludes that □□□□□□□□□□□ 8 | motion — filed over four years after entry of final judgment — is not timely. 9 Based on the foregoing, the undersigned recommends that Plaintiff's motion, ECF 10 | No. 12, be DENIED. 11 These findings and recommendations are submitted to the United States District 12 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 14 days 13 || after being served with these findings and recommendations, any party may file written objections 14 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 15 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 16 | Yist, 951 F.2d 1153 (9th Cir. 1991). [17] 18 || Dated: January 9, 2024 = IS Co 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE