(PC) Walker v. Howard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARQUISE WALKER, No. 1:20-cv-01575-DAD-EPG (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION, VACATING 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND JUDGMENT 14 HOWARD, ENTERED ON FEBRUARY 23, 2021, AND DIRECTING CLERK OF THE COURT TO 15 Defendant. REOPEN CASE 16 (Doc. No. 19) 17 18 19 Marquise Walker (“plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 21 On November 20, 2020, the assigned magistrate judge screened plaintiff’s complaint and 22 ordered plaintiff to either file a first amended complaint or notify the court that he wished to stand 23 on his original complaint within thirty (30) days. (Doc. No. 9.) Plaintiff did not file an amended 24 complaint or otherwise respond to the screening order. Accordingly, on January 11, 2021, the 25 magistrate judge issued findings and recommendations recommending that the action be 26 dismissed, in part, due to plaintiff’s failure to prosecute and failure to comply with a court order. 27 (Doc. No. 12.) Plaintiff was provided fourteen (14) days to file objections to the findings and 28 recommendations but failed to do so. 1 On February 23, 2021, the undersigned adopted the findings and recommendations in part, 2 and the action was dismissed due to plaintiff’s failure to prosecute and failure to comply with a 3 court order. (Doc. No. 13.) On April 9, 2021, plaintiff filed a motion for reconsideration. (Doc. 4 No. 19.) On April 16, 2021, plaintiff lodged a first amended complaint. (Doc. No. 20.) 5 “There are four grounds upon which a Rule 59(e) motion may be granted: 1) the motion 6 is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the 7 moving party presents newly discovered or previously unavailable evidence; 3) the motion is 8 necessary to prevent manifest injustice; or 4) there is an intervening change in controlling law.” 9 Turner v. Burlington N. Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (citation and 10 internal quotation marks omitted). 11 Under Federal Rule of Civil Procedure 60(b), 12 [o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the 13 following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 14 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called 15 intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been 16 satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no 17 longer equitable; or (6) any other reason that justifies relief. 18 Fed. R. Civ. P. 60(b). 19 Under Rule 60(b)(6), a plaintiff “must demonstrate both injury and circumstances beyond 20 his control that prevented him from proceeding with the action in a proper fashion.” Harvest v. 21 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (citation and internal quotation marks omitted). 22 Additionally, Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 23 injustice and is to be utilized only where extraordinary circumstances prevented a party from 24 taking timely action to prevent or correct an erroneous judgment.” (Id.) (citation and internal 25 quotation marks omitted). 26 In his present motion, plaintiff claims that he did not receive the court’s screening order. 27 (Doc. No. 19 at 2 (“Plaintiff never received the court[’]s order stating he failed to state a claim 28 and failure to amend within 30 days will result in dismissal for failure to prosecute.”).) He 1 | explains that he was transferred from High Desert State Prison (“HDSP”) to Kern Valley State 2 | Prison (““KVSP”) on January 26, 2021, but HDSP did not deliver his legal mail to him before that 3 | transfer date. Ud.; see Ex. A, Doc. No. 19 at 5 (stating plaintiff “was initially placed into 4 | [administrative segregation unit] on 01/26/2021 at KVSP from HDSP”).) Plaintiff requests 5 || permission to either file objections to the findings and recommendations or file an amended 6 | complaint. Cd. at 3.) 7 While plaintiff claims he did not receive a copy of the court’s screening order, he does not 8 || represent whether he received the January 11, 2021 findings and recommendations or the 9 | undersigned’s February 23, 2021 order adopting the findings and recommendations. However, 10 | the findings and recommendations were issued and mailed to plaintiff at HDSP on January 11, 11 | 2021, before plaintiffs transfer to KVSP on January 26, 2021, making it plausible that he did not 12 | in fact receive the findings and recommendations given his claim that HDSP did not deliver his 13 | legal mail to him. Based on plaintiff's representation that he did not receive the court’s order and 14 | out of an abundance of caution and in the interest of justice, the court will vacate the judgment 15 | and grant plaintiff an opportunity to respond to the screening order, which he has seemingly done 16 | by lodging a first amended complaint. (See Doc. No. 20.) 17 Accordingly, 18 1. Plaintiffs motion for reconsideration (Doc. No. 19) is granted; 19 2. The court’s order adopting the findings and recommendations and dismissing the 20 | action, issued on February 23, 2021, (Doc. No. 13), is vacated; 21 3. The Clerk of the Court is directed to reopen this case; and 22 4. This case is referred back to the magistrate judge for further proceedings. 23 | IT IS SO ORDERED. sass - Dated: _ August 27, 2021 al, A 4 a 25 UNITED STATES DISTRICT JUDGE 26 27 28