(PC) Robinson v. Davey ( 2022 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ANTHONY L. ROBINSON, 1:17-cv-01524-DAD-GSA-PC 9 Plaintiff, FINDINGS AND RECOMMENDATIONS, 10 RECOMMENDING THAT PLAINTIFF’S vs. MOTION TO REOPEN CASE BE DENIED 11 (Doc. No. 88.) DAVE DAVEY, et al., 12 OBJECTIONS, IF ANY, DUE WITHIN 14 Defendants. DAYS 13 14 15 I. BACKGROUND 16 This civil rights action, filed under 42 U.S.C. § 1983 by Plaintiff Anthony L. Robinson, 17 was dismissed, without prejudice, on December 2, 2021 due to Plaintiff’s failure to prosecute 18 and failure to keep the court apprised of his current mailing address. (Doc. No. 86.) On January 19 3, 2022, Plaintiff filed a motion for extension of time to respond to court deadlines which the 20 court construes as a motion to reopen the case. (Doc. No. 88.) 21 II. MOTION TO REOPEN CASE 22 A. Legal Standards 23 Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration of a final 24 judgment or any order where one of more of the following is shown: (1) mistake, inadvertence, 25 surprise, or excusable neglect; (2) newly discovered evidence which, with reasonable diligence, 26 could not have been discovered within twenty-eight days of entry of judgment; (3) fraud, 27 misrepresentation, or misconduct of an opposing party; (4) voiding of the judgment; (5) 28 satisfaction of the judgment; and (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). A 1 motion for reconsideration on any of these grounds must be brought within a reasonable time, 2 and no later than one year, of the entry of the judgment or the order being challenged. Id. 3 “Motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure 4 are addressed to the sound discretion of the district court . . .” Allmerica Financial Life Insurance 5 and Annuity Company v. Llewellyn, 139 F.3d 664, 665 (9th Cir. 1997). 6 B. Plaintiff’s Motion 7 Plaintiff requests an extension of time “for righteous cause shown” to reply to any recent 8 court proceedings and court orders, or any pleadings filed by the Defendants since August 3, 9 2021. (Doc. No. 88 at 1:21.) Plaintiff reports that he was released on parole on August 3, 2021 10 and now intends to prosecute this case. He asserts that he has not received any court orders 11 through CDCR prison mail to Compton’s parole office since August 3, 2021. Plaintiff also 12 informs the court of his current street address. 13 Plaintiff does not present any basis under Rule 60 for reopening his case. Plaintiff did 14 not receive mail from the court beginning in August 2021 because he failed to keep the court 15 apprised of his change of address. Pursuant to Local Rule 183(b), “A party appearing in propria 16 persona shall keep the Court and opposing parties advised as to his or her current address. If 17 mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, 18 and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days 19 thereafter of a current address, the Court may dismiss the action without prejudice for failure to 20 prosecute.” In this case, more than eighty (80) days passed between the time Plaintiff’s mail was 21 returned to the court and his case was dismissed for failure to prosecute. Moreover, more than thirty 22 (30) additional days passed after the dismissal before Plaintiff notified the court of his current address. 23 Based on this record the court should not grant Plaintiff’s motion to reopen this case. 24 Plaintiff’s case was dismissed on December 2, 2021, without prejudice, and if he wishes to prosecute 25 this case now he may file a new complaint. 26 III. RECOMMENDATIONS AND CONCLUSION 27 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion to reopen 28 this case, filed on January 3, 2022, be denied. 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days after the date of service of these findings and recommendations, any party may file 4 written objections with the court. Such a document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 6 and filed within ten (10) days after the date the objections are filed. The parties are advised that 7 failure to file objections within the specified time may result in the waiver of rights on appeal. 8 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 9 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11 12 Dated: January 5, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28