(PC) Harris v. Restivo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTE B. HARRIS, No. 1:20-cv-00797-NONE-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 13 v. (Doc. No. 17) 14 A. RESTIVO, et al., 15 Defendants. 16 17 Plaintiff Devonte Harris is a state prisoner proceeding pro se in this civil rights action 18 filed pursuant to 42 U.S.C. § 1983. On January 25, 2021, the undersigned adopted the magistrate 19 judge’s findings and recommendations, ordering that “[t]his case proceed on Plaintiff’s retaliation 20 claims against defendants Levan and Restivo; Plaintiff’s section 1983 malicious prosecution 21 claims against defendants Levan and Restivo; and Plaintiff’s Devereaux claims against 22 defendants Levan, Reynolds, and Restivo,” and that “[a]ll other claims and defendants be 23 dismissed.” (Doc. No. 14 at 4.) 24 On February 19, 2021, plaintiff filed a motion for reconsideration of the order adopting 25 the findings and recommendations, arguing that the court erred in dismissing claims four, 26 thirteen, fourteen, fifteen, sixteen, and seventeen as time barred. (Doc. No. 17 at 1.) Specifically, 27 plaintiff argues that the court failed to “account for the additional consecutive tolling of two years 28 plaintiff receives as a legal disability for his incarceration on a term less than life under Cal. Code 1 | Civ. Proc. § 352.1.” (Ud. at 4-5.) Furthermore, plaintiff contends that he is “entitled to 6 months 2 | and 8 days, and at least 6 months and 20 days, respectively, in equitable tolling while he 3 | exhausted his administrative remedies.” (/d. at 6.) 4 Under Federal Rule of Civil Procedure 60(b), 5 [o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the 6 following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 7 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called 8 intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been 9 satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no 10 longer equitable; or (6) any other reason that justifies relief. 11 | Fed. R. Civ. P. 60(b). Plaintiff “must demonstrate both injury and circumstances beyond his 12 | control that prevented him from proceeding with the action in a proper fashion.” Harvest v. 13 | Castro, 531 F.3d 737, 749 (9th Cir. 2008) (citation and internal quotation marks omitted). 14 | Additionally, Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 15 | injustice and is to be utilized only where extraordinary circumstances prevented a party from 16 | taking timely action to prevent or correct an erroneous judgment.” /d. (citation and internal 17 || quotation marks omitted). 18 Plaintiff asserts he is entitled to additional statutory and equitable tolling of the applicable 19 | statute of limitations. Absent a more specific showing and without more, plaintiff has failed to 20 | demonstrate that the court erred in finding his claims time-barred or that any of the Rule 60(b) 21 || requirements are met. Accordingly, plaintiff's motion for reconsideration (Doc. No. 17) is 22 | DENIED. 23 | IT IS SO ORDERED. ~ □ Dated: _ March 12, 2021 Hoe | aor 25 UNITED STATES DISTRICT JUDGE 26 27 28