Williams v. Navarro ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, Case No.: 3:18-cv-01964-AJB-BLM CDCR #AG-2394, 12 ORDER DENYING MOTION TO Plaintiff, 13 CORRECT SCREENING OF vs. COMPLAINT 14 15 [ECF No. 10] O. NAVARRO, et al., 16 Defendants. 17 18 19 20 21 LANCE WILLIAMS (“Plaintiff”), a prisoner incarcerated at Deuel Vocational 22 Institution in Tracy, California, and proceeding pro se, filed a civil rights action pursuant 23 to 42 U.S.C. § 1983 on August 23, 2018. (See Compl., ECF No. 1). In addition, he filed a 24 Motion for Leave to proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 25 (See ECF No. 2). 26 On October 19, 2018, the Court DENIED Plaintiff’s Motion to Proceed IFP as barred 27 by 28 U.S.C. § 1915(g). (See ECF No. 6.) Judgment was also entered in favor of 28 Defendants on October 19, 2018. (See ECF No. 7.) 1 Nearly two years later, on July 29, 2020, Plaintiff filed a “Motion to Correct 2 Screening of Complaint and Court Error Notice.” (ECF No. 10.) 3 I. Plaintiff’s Motion to Reconsider 4 Plaintiff brings this Motion to “alert this Court and give it opportunity to get its errors 5 corrected before the Plaintiff goes to the 9th Circuit and Judicial Commission to file 6 complaints.” (Pl.’s Mot. at 1.) Plaintiff claims that he initially filed this action “under 7 imminent danger” exception to the “three strikes” rule of 28 U.S.C. § 1915(g). (Id.) 8 Plaintiff also claims that he received notice that his case had been “accepted” by the Court 9 on August 23, 2018 and he has been “waiting for screening results ever since.” (Id.) 10 Plaintiff is “making this request to [the] Court to move this case forward under 11 imminent danger and acknowledge their errors in doing so or face complaints for bias, 12 prejudice, retaliation.” (Id. at 2.) 13 A. Standard of Review 14 The Federal Rules of Civil Procedure do not expressly provide for motions for 15 reconsideration. However, S.D. Cal. Civil Local Rule 7.1(i) does permit motions for 16 reconsideration “[w]henever any motion or any application or petition for any order or 17 other relief has been made to any judge ... has been refused in whole or in part.” S.D. Cal. 18 CivLR 7.1(i). The party seeking reconsideration must show “what new or different facts 19 and circumstances are claimed to exist which did not exist, or were not shown, upon such 20 prior application.” Id. Local Rule 7.1(i)(2), permits motions for re consideration within “30 21 days of the entry of the ruling.” 22 A motion for reconsideration filed pursuant to a Local Rule may also be construed 23 as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. 24 Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 25 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that “a post- 26 judgment motion will be considered a Rule 59(e) motion where it involves ‘reconsideration 27 of matters properly encompassed in a decision on the merits.’” 489 U.S. at 174 (quoting 28 White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 (1982)). A district 1 court may grant a Rule 59(e) motion if it “‘is presented with newly discovered evidence, 2 committed clear error, or if there is an intervening change in the controlling law.’” Wood 3 v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell v. Calderon, 197 F.3d 1253, 4 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 5 665 (9th Cir. 1999)). 6 B. Discussion 7 Under either statute, Plaintiff’s Motion is untimely. Pursuant to Rule 59(e), “[a] 8 motion to alter or amend a judgment must be filed no later than 28 days after the entry of 9 judgment.” Fed. R. Civ. P. 59(e). Pursuant to Rule 60(c)(1), a motion seeking relief from 10 a judgment or order “must be made within a reasonable time” and if the party is seeking 11 relief pursuant to Rule 60(b)(1), (2), or (3), is must be brought “no more than a year after 12 the entry of judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). 13 While Plaintiff does not explicitly seek relief under Rule 60(b)(1), (2), or (3), he bases his 14 Motion on the “Court’s negligence” which would fall under Rule 60(b)(1). This rule 15 provides as a ground for relief from judgment that was based on “mistake, inadvertence, 16 surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). 17 Here, Plaintiff is seeking relief nearly two years after judgment was entered. This is 18 far outside the 28 day period allowed by Rule 59(e) or the one year permitted by Rule 19 60(b). The Court’s docket does not reflect that any mail was returned undeliverable to the 20 Plaintiff. Moreover, Plaintiff provides no reasonable explanation as to why he never 21 inquired into the status of his Complaint for nearly two years. A review of Plaintiff’s 22 litigation history shows that he is familiar with how to contact the Court to inquire as to 23 the status. 24 Accordingly, Plaintiff’s Motion to “Correct Screening of Complaint,” which the 25 Court has liberally construed as a Motion for Reconsideration is DENIED. 26 II. Conclusion and Order 27 For the reasons set forth above, the Court: 28 1) DENIES Plaintiff’s Motion to Correct Screening of Complaint (ECF No. 10); 1 2) CERTIFIES that an IFP appeal from this Order would be frivolous and 2 ||therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 3 || Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 4 ||550 (9th Cir. 1977) Gndigent appellant is permitted to proceed IFP on appeal only if appeal 5 || would not be frivolous). 6 The Clerk of Court is directed to strike (Doc. No. 12) from the docket, as it was 7 || docketed in error. 8 IT IS SO ORDERED. 9 || Dated: October 21, 2020 10 Hon, Anthony J Heatia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 oo ee