(PC) Cruz v. Chappuis ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, No. 2:19-cv-1467-WBS-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 M. CHAPPUIS, 15 Defendant. 16 17 Plaintiff filed this section 1983 action on July 26, 2019 and sought leave to proceed in 18 forma pauperis (“IFP”). See ECF Nos. 5, 7, & 9. The court recommended that his application to 19 proceed IFP be denied because it determined that plaintiff was a “three-striker” within the 20 meaning of 28 U.S.C. § 1915(g). ECF No. 12. Plaintiff did not file objections to those 21 recommendations, and they were adopted by the district judge. ECF No. 13. Plaintiff was 22 directed to pay the four-hundred dollar filing fee within fourteen days or face dismissal of this 23 action. Id. Plaintiff failed to submit the fee (or any other filing) during the requisite time period 24 and, on May 21, 2020, the district judge dismissed this action. ECF Nos. 14 & 15. Shortly 25 thereafter, on the same day, plaintiff filed a “motion to review in forma pauperis status” which the 26 court construes as a motion for reconsideration. ECF No. 16. The motion must be denied. 27 ///// 28 ///// 1 Legal Standards 2 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 3 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 4 for: 5 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 6 discovered evidence that with reasonably diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 7 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the 8 judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed 9 or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief from the operation of the judgment. 10 11 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, and for 12 reasons (1), (2), and (3), no more than a year after the entry of the judgment or order or the date 13 of the proceeding. Fed. R. Civ. P. 60(c)(1). 14 Analysis 15 Plaintiff’s motion for reconsideration is a single page. ECF No. 16. He offers neither 16 legal argument nor any contention that he is not a “three-striker.” Instead, he contends that, the 17 district judge – whom he mistakenly refers to as the magistrate judge – erred when he indicated 18 that no objections had been filed in adopting the March 19, 2020 findings and recommendations. 19 See ECF No. 13. He claims that he sent his objections on an unspecified date before he left 20 Pelican Bay State Prison. ECF No. 16 at 1. Nevertheless, a review of the docket indicates that 21 those objections never reached the court. They are not on the docket and the court cannot hazard 22 to guess as to why they failed to arrive or what their content might have been. Thus, this motion 23 for reconsideration should be denied. This decision does not preclude the filing of a more 24 substantive motion for reconsideration which argues why plaintiff should be allowed to proceed 25 in forma pauperis.1 26 ///// 27 1 Plaintiff is cautioned that this notation is not in any way an indication of how any 28 subsequent motion would be decided. wOAOe 2 LUV VEIT EO RYT MVOC oe PI Ve her TOY VMI 1 Thus, it is RECOMMENDED that plaintiffs motion for review of in forma pauperis 2 || status (ECF No. 16) be DENIED. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 10 || Dated: September 16, 2020. > 12 EDMUND F. BRENNAN B UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28