(PC) McElroy v. Ramos ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LATWAHN McELROY, No. 2:18-cv-2771-WBS-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 C. RAMOS, et al., 15 Defendants. 16 17 Plaintiff is a prisoner proceeding pro se with this civil rights action under 42 U.S.C. 18 § 1983. His complaint was dismissed without prejudice due to plaintiff’s failure to either submit 19 the filing fee or an application for leave to proceed in forma pauperis. ECF No. 6. Judgment was 20 entered on the same day. ECF No. 7. After the case was closed, plaintiff filed an application for 21 leave to proceed in forma pauperis and a “letter of recognition” stating that he submitted his 22 application at his “earliest convenience.” ECF Nos. 8 & 9. Liberally construing the letter, the 23 court addresses it herein as a motion for relief from judgment pursuant to Rule 60(b) of the 24 Federal Rules of Civil Procedure. So construed, the motion must be denied. 25 Rule 60(b) provides for reconsideration of a final judgment where one of more of the 26 following is shown: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 27 discovered evidence which, with reasonable diligence, could not have been discovered within 28 twenty-eight days of entry of judgment; (3) fraud, misrepresentation, or misconduct of an 1 || opposing party; (4) voiding of the judgment; (5) satisfaction of the judgment; and (6) any other 2 || reason justifying relief. Fed. R. Civ. P. 60(b). A motion for reconsideration on any of these 3 | grounds must be brought within a reasonable time, and no later than one year, of the entry of the 4 | judgment or the order being challenged. Jd. Additionally, Local Rule 230(j) requires a party 5 | filing a motion for reconsideration to show the “new or different facts or circumstances claimed 6 || to exist which did not exist or were not shown upon such prior motion, or what other grounds 7 | exist for the motion.” E.D. Cal. Local Rule 230(j). 8 Here, plaintiffs motion is incoherent. It sets forth no basis for reconsideration of the 9 | court’s final order. Thus, plaintiff has failed to meet his burden under Rule 60(b). 10 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s “letter of recognition,” 11 || construed as motion for relief from judgment pursuant to Rule 60(b) (ECF No. 9), be denied. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 || objections shall be served and filed within fourteen days after service of the objections. The 18 || parties are advised that failure to file objections within the specified time may waive the right to 19 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 20 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: October 15, 2019. 22 EDMUND F. BRENNAN 73 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28