(PC) Montenegro v. Schrffenberg ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN MONTENEGRO, ) Case No.: 1:17-cv-00422-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION 13 v. ) FOR RECONSIDERATION 14 DR. SCHRFFENBERG, et.al., ) [ECF No. 14] ) 15 Defendants. ) ) 16 ) 17 On September 27, 2017, the instant action filed pursuant to 28 U.S.C. § 1983, was dismissed 18 for failure to comply with a court order and for failure to state a cognizable claim for relief, and 19 judgment was entered. (ECF Nos. 12, 13.) 20 On September 27, 2019, Plaintiff filed a motion “to be heard for failure to comply with a court 21 order.” The Court construes Plaintiff’s motion as a Rule 60 motion for relief. 22 Federal Rule of Civil Procedure 60(b) governs relief from orders of the district court. The 23 Rule permits a district court to relieve a party from a final order or judgment on grounds of: “(1) 24 mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence. . .; (3) fraud . . . 25 by an opposing party, . . .; (4) the judgment is void; (5) the judgment has been satisfied…; or (6) any 26 other reason that justifies relief.” Fed. R. Civ. P. 60(b). The motion for reconsideration must be made 27 within a reasonable time. Id. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent 28 manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 1 || Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party “must demonstrate both injury and 2 || circumstances beyond his control... .” Id. 3 Plaintiff's motion is untimely as it was filed two years after the judgment was entered. If A || Plaintiff believed he had a valid basis to seek reconsideration, he could and should have filed a motio 5 a timely manner, and Plaintiff has failed to set forth any valid basis for failing to do so. In additior 6 || Plaintiff's generalized contention that there was interference with his mail is not of a strong 7 || convincing nature to reverse the Court’s September 27, 2017 order. Kern—Tulare Water Dist. v. City 8 || of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986). Plaintiff provides no explanation about what 9 || leads him to believe that his mail was purposely destroyed, and he provides no explanation of any 10 || efforts that he made to litigate this case from June 2017 to September 2019. Thus, Plaintiff has not 11 || met his burden of demonstrating that relief under any provision of Rule 60(b) is appropriate. 12 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for reconsideration is denied 13 14 IS SO ORDERED. 2p 15 || Dated: _ November 6, 2019 ZS Cb t- ut 16 — SENIOR DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28