(PS) Whitsitt v. City of Stockton ( 2021 )


Menu:
  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM J. WHITSITT, No. 2:20-cv-01178 KJM AC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CITY OF STOCKTON, et al., 15 Defendants. 16 17 Plaintiff has filed a second motion to reopen this case under Federal Rule of Civil 18 Procedure 60. ECF No. 25. Because plaintiff proceeds pro se, the matter is referred to the 19 undersigned pursuant to Local Rule 302(c)(21). For the reasons that follow, the motion should be 20 DENIED and plaintiff should be PRECLUDED from filing further motions to reopen this case. 21 I. RELEVANT FACTUAL AND PROCEDURAL HISTORY 22 Plaintiff filed his complaint on June 12, 2020 and moved to proceed in forma pauperis. 23 ECF Nos. 1, 2. Pursuant to the IFP screening process, the initial complaint was rejected as 24 duplicative of another case. ECF Nos. 4, 11. Judgment was entered on March 25, 2021 and this 25 case was closed. ECF No. 12. On June 3, 2021, plaintiff moved to reopen the case pursuant to 26 Fed. R. Civ. P. 60. ECF No. 13. The motion was denied over plaintiff’s objections. ECF Nos. 27 14, 17, 20. On November 5, 2021, plaintiff filed a second Rule 60 motion to reopen. ECF No. 28 25. 1 II. STANDARDS 2 Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration of a final 3 judgment or any order where one of more of the following is shown: (1) mistake, inadvertence, 4 surprise, or excusable neglect; (2) newly discovered evidence which, with reasonable diligence, 5 could not have been discovered within twenty-eight days of entry of judgment; (3) fraud, 6 misrepresentation, or misconduct of an opposing party; (4) voiding of the judgment; (5) 7 satisfaction of the judgment; and (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). A 8 motion for reconsideration on any of these grounds must be brought within a reasonable time, and 9 no later than one year, of the entry of the judgment or the order being challenged. Id. “Motions 10 for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure are 11 addressed to the sound discretion of the district court...” Allmerica Financial Life Insurance and 12 Annunity Company v. Llewellyn,139 F.3d 664, 665 (9th Cir. 1997). 13 III. ANALYSIS 14 In his present motion, plaintiff argues that he did not see or have an opportunity to object 15 to the August 26, 2020 findings and recommendations (ECF No. 4) “due to missing them by my 16 personal neglect” and asks the court to re-open this case on grounds of excusable neglect and 17 extraordinary circumstances including mail theft. ECF No. 25 at 2. However, plaintiff did indeed 18 object to the findings and recommendations. ECF No. 7. Plaintiff does not present any basis for 19 reopening this case. 20 IV. CONCLUSION 21 It is HEREBY RECOMMENDED that plaintiff’s motion (ECF No. 25) be DENIED. 22 Moreover, because plaintiff has now filed two frivolous motions to re-open this case, it is 23 FURTHER RECOMMENDED that the court issue an order directing that no further Rule 60 24 motions will be considered. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 1 | document should be captioned “Objections to Magistrate Judge’s Findings and 2 || Recommendations.” Any response to the objections shall be filed with the court and served on all 3 || parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 4 || objections within the specified time may waive the right to appeal the District Court’s order. 5 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 6 | (Oth Cir. 1991). 7 | DATED: November 9, 2021 ~ 8 Htttenr— Lhor—e_ ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 2:20-cv-01178

Filed Date: 11/10/2021

Precedential Status: Precedential

Modified Date: 6/19/2024