(PC) Verduzco v. Marin ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SALVADOR GONZALEZ VERDUZCO, Case No. 1:14-cv-01387-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO REOPEN CASE 13 v. (ECF No. 37) 14 MARIN, et al., 15 Defendants. 16 17 Plaintiff Salvador Gonzalez Verduzco (“Plaintiff”) is a state prisoner proceeding pro se 18 and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. On December 22, 2015, 19 the Magistrate Judge issued findings and recommendations recommending that Plaintiff’s action 20 be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) for failure to 21 serve the defendants. (ECF No. 31.) Plaintiff objected, stating at length that his case is 22 meritorious, and that he would seek legal counsel to assist him in prosecuting this action. (ECF 23 No. 32.) Finding these objections did not undermine the grounds for dismissal, the Court adopted 24 the findings and recommendations in full, and dismissed the case, without prejudice, for failure to 25 serve the defendants. (ECF No. 33.) Judgment was entered accordingly. (ECF No. 34.) 26 On February 26, 2016, Plaintiff filed a motion for reconsideration, expressing his 27 disagreement with the dismissal of his case. (ECF No. 35.) Finding that Plaintiff’s motion 28 merely alleged disagreement with the judgment, and set forth no grounds for reconsideration of 1 the Court’s order dismissing the action, the Court denied the motion for reconsideration. (ECF 2 No. 36.) 3 Currently before the Court is Plaintiff’s motion to reopen the case, filed July 12, 2019. 4 (ECF No. 37.) In his motion, Plaintiff contends that he has better ideas to make the correctional 5 officers present all their information, including the real names, “plate numbers,” and “serial 6 number” of the correctional officers. Plaintiff states that he has a letter from the Court telling him 7 that at any time he has the chance to reopen his case. (Id.) 8 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 9 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 10 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 11 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 12 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 13 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any 14 event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. 15 Plaintiff’s motion to reopen, which the Court construes as a Rule 60(b) motion, is 16 untimely and will be denied. 17 To the extent Plaintiff seeks relief under Rule 60(b)(2) by claiming that he has newly 18 discovered evidence regarding the officers’ identities, he failed to file the present motion within a 19 year after the judgment was entered. Fed. R. Civ. P. 60(c)(1). 20 Plaintiff’s motion is also untimely under Rule 60(b)(6). See Hogan v. Robinson, 2009 21 WL 1085478, at *4 (E.D. Cal. Apr. 22, 2009) (Rule 60(b)(6) motion “filed over 18 months after 22 judgment was entered, and over two years after Plaintiffs were put on notice of the facts and 23 circumstances upon which they rely[ ]” was untimely); Swait v. Evans, 2008 WL 4330291, at *5– 24 6 (C.D. Cal. Sept. 22, 2008) (Rule 60(b) motions untimely where petitioner “failed to proffer any 25 legally valid explanation for his two-year delay” in filing). Taking into consideration the interest 26 in finality and the lack of reasons for Plaintiff’s extended delay, the Court finds Plaintiff’s nearly 27 three-year delay in moving to reopen under Rule 60(b)(6) is unreasonable. See Fed. R. Civ. P. 28 60(c); cf. Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (“there is a compelling interest in 1 || the finality of judgments which should not be lightly disregarded”). Additionally, Plaintiff has 2 | failed to show extraordinary circumstances that would justify relief under Rule 60(b)(6). See 3 || Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996, 1005 (9th Cir. Cal. 2007). 4 The Court entered judgment in this case more than three years prior to the filing of 5 || Plaintiffs motion. Plaintiff has provided no explanation for the delay in filing his motion, nor is 6 || it clear that Plaintiff actually possesses new evidence or information regarding the officers’ 7 || identities. To the extent Plaintiff references the dismissal of this action without prejudice, that 8 || designation allows for the possibility of re-filing his claims, not the reopening of this action at any 9 | time. 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to reopen the case, (Doc. 11 || No. 37), is DENIED. 12 3 IT IS SO ORDERED. 14 | Dated: _February 20, 2020 7 Zz : Z Cb Led "SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28