(HC) Proffitt v. Lizarraga ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DANIEL PROFFITT, No. 2:19-cv-1510 WBS CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 JOE LIZARRAGA, 15 Respondent. 16 17 By order filed September 3, 2019, this action was dismissed (ECF No. 11) and judgment 18 was entered the same day (ECF No. 12). Petitioner filed objections to the findings and 19 recommendations on December 5, 2019,1 (ECF No. 18), followed by a motion for rehearing on 20 January 5, 2020 (ECF No. 19), which will be construed as motions for reconsideration. 21 A motion for reconsideration or relief from a judgment is appropriately brought under 22 either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Fuller v. M.G. Jewelry, 23 950 F.2d 1437, 1442 (9th Cir. 1991) (citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)). 24 The motion “is treated as a motion to alter or amend judgment under Federal Rule of Civil 25 Procedure 59(e) if it is filed [within the time provided by that Rule]. Otherwise, it is treated as a 26 Rule 60(b) motion for relief from a judgment or order.” Am. Ironworks & Erectors, Inc. v. N. 27 1 Since petitioner is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox 28 rule. Houston v. Lack, 487 U.S. 266, 276 (1988). 1 Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (citations omitted). Since plaintiff’s 2 motion for reconsideration was filed more than twenty-eight days after the entry of judgment, the 3 motions are considered under Rule 60(b). 4 “Rule 60(b) enumerates specific circumstances in which a party may be relieved of the 5 effect of a judgment, such as mistake, newly discovered evidence, fraud, and the like. The Rule 6 concludes with a catchall category—subdivision (b)(6)—providing that a court may lift a 7 judgment for ‘any other reason that justifies relief.’ Relief is available under subdivision (b)(6), 8 however, only in ‘extraordinary circumstances.’” Buck v. Davis, 137 S. Ct. 759, 771-72 (2017). 9 Further, Local Rule 230(j) requires that a motion for reconsideration state “what new or different 10 facts or circumstances are claimed to exist which did not exist or were not shown upon such prior 11 motion, or what other grounds exist for the motion; and why the facts or circumstances were not 12 shown at the time of the prior motion.” L.R. 230(j)(3)-(4). 13 The petition was dismissed without prejudice because it was an unauthorized second or 14 successive petition. (ECF Nos. 5, 11.) In his motions to reconsider, petitioner argues that his 15 newly presented evidence relates back to his original claims (ECF No. 18 at 1) and that the court 16 should have ordered the production of transcripts (ECF No. 19 at 1-3). Neither motion provides 17 any basis for finding that petitioner has received authorization from the Ninth Circuit to proceed 18 on his petition and the motions should therefore be denied. 19 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motions for 20 reconsideration (ECF Nos. 18, 19) be denied. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, petitioner may file written 24 objections with the court. Such a document should be captioned “Objections to Magistrate 25 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 26 //// 27 //// 28 //// 1 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 2 | Yist, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: January 13, 2020 a ad J. kt / i ea 4 CAROLYNK.DELANEY | 5 UNITED STATES MAGISTRATE JUDGE 6 13:prof1510.60b.f&r 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28