(PC) Zaiza v. Peacock ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 JOSE ROBERTO ZAIZA, CASE NO. 1:19-cv-01475-AWI-HBK (PC) 7 Plaintiff, ORDER RELIEVING PLAINTIFF FROM FINAL JUDGMENT AND 8 v. ORDER, AND REOPENING CASE 9 PEACOCK, et al., (Doc. Nos. 14 & 15) 10 Defendants. 11 12 On June 23, 2021, the Court entered an order adopting findings and recommendations and 13 dismissing Plaintiff Jose Roberto Zaiza’s action as untimely. Doc. No. 14. The same day, a 14 judgment was entered and the case was closed. Doc. No. 15. Thereafter, the Court discovered a 15 mistake of its own. Namely, the findings and recommendations (Doc. No. 11), which the Court 16 adopted in full, did not include consideration of the two-year tolling period that applies where a 17 plaintiff’s claim accrues while he or she is incarcerated for a term of less than life. See Cal. Civ. 18 Proc. Code § 352.1(a); see also Brown v. County of Los Angeles, 830 F. App’x 231, 232 (9th Cir. 19 2020). The complaint here makes clear that Plaintiff seeks relief on claims that accrued while he 20 was incarcerated. Doc. No. 1 at 4–7. With application of § 352.1(a), Plaintiff’s claims no longer 21 appear to be untimely on the face of his complaint, which in turn means that the Court’s dismissal 22 of the pleading on this ground was incorrect. In the interest of justice, the Court will relieve 23 Plaintiff from the adverse outcome by vacating the previously entered order and judgment and 24 issuing direction for the case to be reopened. See Fed. R. Civ. P. 60(b); see also Kingvision Pay- 25 Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 351–52 (9th Cir. 1999). The Court will further 26 decline to adopt the findings and recommendations and instead return the case to the assigned 27 magistrate judge for further proceedings. 28 /// 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The order and judgment (Doc. Nos. 14 & 15) that were entered on June 23, 2021, 4 are VACATED; 5 2. The Clerk of Court shall REOPEN this case; 6 3, For the reasons stated above, the Court DECLINES to adopt the findings and 7 recommendations (Doc. No. 11) that were issued on April 14, 2020; and 8 4. The case is REFERRED BACK to the assigned magistrate judge for further 9 proceedings. 10 ITIS SO ORDERED. □□ ~_-SENIOR DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45