(HC) Caldwell v. Foss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN CALDWELL, No. 2:19-cv-00679 TLN GGH P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 V. FOSS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(e). 20 On February 3, 2020, the undersigned issued findings and recommendations 21 recommending dismissal based on petitioner’s lack of prosecution and failure to comply with the 22 court’s order. ECF No. 15. On March 9, 2020, the assigned district judge adopted the 23 undersigned’s findings and recommendations, dismissed the action, and directed the Clerk of the 24 Court to close the case. ECF No. 16. Judgement was entered the same day. ECF No. 17. On May 25 29, 2020, petitioner filed a motion to reopen this closed action. ECF No. 18. 26 Federal Rule of Civil Procedure Rule 60(b) provides a district court “may relieve a party” 27 “from a final judgment” for “(1) mistake, inadvertence surprise, or excusable neglect; (2) newly 28 discovered evidence[;]” “(3) fraud[;]” “(4) the judgment is void; (5) the judgment has been 1 satisfied[;]” or “(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Relief under Rule 2 60(b) is warranted only if extraordinary circumstances exist. Maraziti v. Thorpe, 52 F.3d 252, 254 3 (9th Cir. 1995) (citing Ackermann v. United States, 340 U.S. 193, 199–201, 71 S.Ct. 209, 212–13 4 (1950)). In support of his motion, petitioner states “at the time I had to respond to the 5 respondent’s motion to dismiss and Findings and Recommendations filed February 3rd, 2020 6 (ECF No. 15) my access to the law library was ‘unreasonable’ and out of my control due to the 7 COVID-19 outbreak, and access was not made available at the time.” Id. at 2. It appears 8 petitioner seeks to be relieved from judgment due to excusable neglect, hardship or delay 9 resulting from a lack of access to his materials due to the COVID-19 pandemic. However, the 10 motion to dismiss was filed on June 27, 2019. ECF No. 9. All of petitioner’s defaults in this case 11 occurred before COVID-19 was even a whisper in this country. The COVID-19 excuse is 12 disingenuous. 13 Petitioner had been warned on numerous occasions of his responsibility to timely respond 14 to respondent’s motion to dismiss and comply with court deadlines and court orders. See ECF 15 Nos. 10 (Order to Show Cause dated August 19, 2019); 11 (Findings and Recommendations 16 dated October 22, 2019); 14 (Order dated December 2, 2020); 15 (Finding and Recommendations 17 dated February 3, 2020). This court previously vacated its findings and recommendations based 18 on a failure to prosecute based on petitioner’s contentions that he did not have access to his 19 materials due to lockdowns, facility transfers, and his ignorance of the law. See ECF Nos. 12, 14. 20 This court has afforded petitioner numerous opportunities to properly litigate this action. Instead, 21 petitioner has continuously failed to comply with the court’s orders and deadlines. Accordingly, 22 petitioner has failed to demonstrate the existence of extraordinary circumstances entitling him to 23 relief pursuant to Fed. R. Civ. P. 60(b). 24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. Petitioner's motion to reopen this action (ECF No. 18) be DENIED; and 26 2. Any further filings from petitioner in this closed case be disregarded. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 objections shall be filed and served within fourteen days after service of the objections. The 5 parties are advised that failure to file objections within the specified time may waive the right to 6 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 Dated: June 29, 2020 /s/ Gregory G. Hollows 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28