(PC) Smith v. Chanelo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, No. 1:16-cv-01356-DAD-BAM (PC) 12 Plaintiff, Appeal No. 21-15827 13 v. ORDER CONSTRUING OBJECTIONS AS A MOTION FOR RECONSIDERATION AND 14 CHANELO, et al., DENYING THAT MOTION AND GRANTING MOTION FOR EXTENSION OF 15 Defendants. TIME TO FILE NOTICE OF APPEAL 16 (Doc. Nos. 81, 82) 17 ORDER 18 19 I. Background 20 Plaintiff Lawrence Christopher Smith, a state prisoner, proceeded pro se and in forma 21 pauperis in this civil rights action under 42 U.S.C. § 1983. 22 On January 12, 2021, the assigned magistrate judge issued findings and recommendations 23 recommending that plaintiff’s motion for a protective order be denied, defendants’ motion to 24 compel plaintiff’s deposition be denied as moot, and that this case be dismissed with prejudice. 25 (Doc. No. 78.) The magistrate judge found that terminating sanctions were appropriate due to 26 plaintiff’s bad faith conduct in refusing to comply with his discovery obligations and needlessly 27 multiplying court proceedings by submitting repetitious and voluminous filings in this action. 28 (Id.) Plaintiff was provided notice that any objections to those findings and recommendations 1 were to be filed within twenty-one days after being served with the findings and 2 recommendations. No objections were filed, and on March 8, 2021, the undersigned adopted the 3 findings and recommendations in full. (Doc. No. 79.) Judgment was entered accordingly the 4 same date. (Doc. No. 80.) 5 On May 6, 2021, plaintiff filed a motion for 30-day extension of time to file a notice of 6 appeal, objections to the findings and recommendations, and a notice of appeal. (Doc. Nos. 81– 7 83.) Plaintiff’s appeal was processed to the Ninth Circuit Court of Appeals the same date, (Doc. 8 No. 84), and assigned Case No. 21-15827. Defendants have not filed a response to plaintiff’s 9 motion for an extension of time. 10 II. Motion for Extension of Time to File Notice of Appeal 11 In his motion for extension of time, plaintiff alleges that he originally submitted his 12 objections to the magistrate judge’s findings and recommendations on February 9, 2021. (Doc. 13 No. 81.) Plaintiff further states that he submitted a request to proceed in forma pauperis and a 14 notice of appeal on March 17, 2021, along with another copy of his objections to the findings and 15 recommendations. After he did not receive confirmation of filing of his notice of appeal, plaintiff 16 submitted his motion for extension of time to file his notice of appeal, together with the 17 previously submitted notice of appeal and objections. Plaintiff argues that he has experienced 18 difficulties with prison staff in properly processing legal mail in the past, leading to documents 19 not being received by the court. (Id.) 20 A notice of appeal must be filed within thirty days after entry of the judgment or order 21 appealed from. Fed. R. App. P. 4(a)(1)(A). The court may extend the time to file a notice of 22 appeal if a party moves for the extension no later than 30 days after the original 30 days expires, 23 and the party “shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). No 24 extension under Rule 4(a)(5) may exceed 30 days after the original deadline, or 14 days after the 25 date when the order granting the motion is entered, whichever is later. Fed. R. App. P. 26 4(a)(5)(C). 27 Here, pursuant to the prison mailbox rule, plaintiff has filed his motion for extension of 28 time within the time allotted by Rule 4(a)(1)(A) and has shown good cause for the requested 1 extension of time. As plaintiff’s notice of appeal has already been processed to the Ninth Circuit, 2 no additional time is necessary. 3 III. Motion for Reconsideration 4 As to plaintiff’s objections, the court notes that even if submitted by plaintiff on February 5 9, 2021, the objections would have been untimely. The magistrate judge’s findings and 6 recommendations were served on January 12, 2021, and plaintiff was permitted twenty-one days 7 to file his objections. Pursuant to Fed. R. Civ. P. 6(d) and the prison mailbox rule, plaintiff’s 8 objections should have been submitted to prison authorities for mailing on or before February 5, 9 2021. According to the proof of service attached to plaintiff’s re-submitted objections, plaintiff 10 did not submit his objections for mailing until February 9, 2021. (Doc. No. 82 at 5.) 11 Nevertheless, in an abundance of caution, the court will construe plaintiff’s untimely objections 12 as a motion for reconsideration pursuant to Fed. R. Civ. P. 60.1 13 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 14 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 15 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 16 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 17 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 18 Fed. R. Civ. P. 60(b). 19 “A motion for reconsideration should not be granted, absent highly unusual 20 circumstances, unless the district court is presented with newly discovered evidence, committed 21 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 22 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks 23 1 As a general rule, a notice of appeal transfers jurisdiction over the matters appealed to the 24 appellate court and divests the district court of jurisdiction over those aspects of the case, but the notice of appeal does not become effective until the district court resolves any motion for 25 reconsideration filed pursuant to Federal Rule of Civil Procedure 60, so long as that motion for reconsideration was filed within 28 days of entry of judgment. Griggs v. Provident Consumer 26 Discount Co., 459 U.S. 56, 58 (1982); Fed. R. App. P. 4(a)(4)(B)(i). Construed as a Rule 60 27 motion for reconsideration mailed on February 9, 2021, petitioner’s objections were filed within 28 days judgment, which was filed on March 8, 2021. (See Doc. No. 80.) The court therefore has 28 jurisdiction to rule on the motion for reconsideration. 1 | and citations omitted), and “[a] party seeking reconsideration must show more than a 2 | disagreement with the Court’s decision, and recapitulation . . .” of that which was already 3 | considered by the Court in rendering its decision, United States. v. Westlands Water Dist., 134 F. 4 | Supp. 2d 1111, 1131 (E.D. Cal. 2001) (internal quotation marks and citation omitted). 5 | Additionally, pursuant to this court’s Local Rules, when filing a motion for reconsideration of an 6 | order, a party must show “what new or different facts or circumstances are claimed to exist which 7 | did not exist or were not shown upon such prior motion, or what other grounds exist for the 8 | motion.” Local Rule 230(). 9 In his latest submission plaintiff essentially argues that his refusal to attend his deposition 10 || was warranted because he has provided the required evidence to support his claim, and a 11 | deposition of him is unnecessary because he is entitled to judgment as a matter of law. (Doc. No. 12 | 82.) Plaintiff further contends that, even if he is not entitled to judgment as a matter of law, due 13 || to alleged misconduct by defendants in this case and his other court cases, he should be entitled to 14 | amend his complaint in this action. (/d. at 2.) 15 Plaintiff has previously submitted these arguments in briefing in support of his multiple 16 | motions for a protective order for his deposition and defendants’ motion to compel plaintiff's 17 | deposition. The court has reviewed and rejected the same. (See Doc. No. 78 at 7-10.) Having 18 | considered plaintiff's moving papers, the court does not find that they support relief under Rule 19 | 60(b). The court does not find that plaintiff presented any new or different facts, circumstances, 20 | or evidence such that reconsideration of the prior order and judgment would be appropriate. 21 | IV. Conclusion 22 Accordingly, 23 1. Plaintiff's motion for extension of time to file a notice of appeal (Doc. No. 81), is granted; 24 2. Plaintiff's motion for reconsideration, (Doc. No. 82), is denied; and 25 3. The Clerk of the Court is directed to send a copy of this order to the Ninth Circuit. 26 | IT IS SO ORDERED. sass - 27 Li fa £5 Dated: _ June 16, 2021 wae □□ — 28 UNITED STATES DISTRICT JUDGE