Luckett v. Sudbury ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || KEITH RUSSEL LUCKETT, Case No. 20cv932-MMA-JLB 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 vs. MOTION TO VACATE UNDER 14 FEDERAL RULE OF CIVIL PROCEDURE 60(b) 15 || A. SUDBURY, et al., 16 Defendants.| [Doc. No. 13] 17 18 Procedural History 19 On May 18, 2020, Plaintiff Keith Russel Luckett, an inmate currently incarcerated 20 at Salinas Valley State Prison, initiated this civil rights action pursuant to 42 U.S.C. § 21 ||1983. See Doc. No. 1. Upon initial screening, the Court dismissed Plaintiff's complaint 22 || for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1). See 23 || Doc. No. 3. Specifically, the Court noted that Plaintiff's claims were untimely and 24 || explained that Plaintiff had failed to allege facts sufficient to demonstrate equitable 25 || tolling of the statutory limitations period. See id. at 7-8. The Court set forth the standard 26 || for equitable tolling, including the necessary conditions, and granted Plaintiff leave to file 27 ||an amended complaint in order to correct the deficiencies of pleading identified in the 28 ||Court’s Order. See id. at 8. 1 Thereafter, Plaintiff filed a First Amended Complaint (“FAC”). See Doc. No. 5. 2 || The Court conducted the requisite sua sponte screening of Plaintiff's FAC and 3 || determined, inter alia, that Plaintiff once again failed to plead sufficient facts to support a 4 || plausible claim for equitable tolling. See Doc. No. 6 at 7-8. The Court further 5 || determined that “[b]ecause Plaintiff has already been provided a short and plain statement 6 || of his pleading deficiencies, as well as an opportunity to amend those claims to no avail, 7 ||the Court finds granting further leave to amend would be futile.” Jd. at 8. The Court 8 || dismissed the action and the Clerk of Court entered judgment accordingly. See Doc. No. 9 10 Plaintiff filed a tumely Notice of Appeal. See Doc. No. 8. Several days later he 11 || filed a second Notice of Appeal. See Doc. No. 9. On August 25, 2020, the United States 12 ||Court of Appeals for the Ninth Circuit docketed Plaintiff's appeal and issued a briefing 13 |}schedule. See Doc. Nos. 10, 11. Several weeks later, Plaintiff filed a motion in this 14 || Court seeking relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). 15 || See Doc. No. 13. 16 Discussion 17 Plaintiff moves for relief from judgment pursuant to Federal Rule of Civil 18 || Procedure 60(b)(1) which provides, in pertinent part, that “the court may relieve a party 19 or its legal representative from a final judgment, order, or proceeding for . . . mistake, 20 || inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Once a district 21 || court is divested of jurisdiction through appeal of a final judgment, it lacks the power to 22 || grant a motion brought pursuant to Rule 60(b) without a remand from the court of 23 ||appeals. See Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007). However, Federal 24 || Rule of Civil Procedure 62.1 provides that “[i]f a timely motion is made for relief that the 25 || court lacks authority to grant because of an appeal that has been docketed and is pending, 26 || the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either 27 it would grant the motion if the court of appeals remands for that purpose or that the 28 || motion raises a substantial issue.” Fed. R. Civ. P. 62.1. Accordingly, the Court may 1 || consider Plaintiff's motion within these parameters. 2 Here, Plaintiff has not shown “excusable neglect” justifying relief from the Court’s 3 ||}order and judgment. Plaintiff simply repeats his previous allegations regarding his 4 || misunderstanding of the statute of limitations for filing this action which the Court 5 determined insufficient. See Maraziti v. Thorpe, 52 F.3d 252, 255 (9th Cir. 1995) 6 || (district court properly denied Rule 60(b) motion because movant “merely reiterated the 7 || arguments that he had already presented to the district court’). Plaintiff also appears to 8 || state additional facts to support a claim that he was diligent in pursuing his legal remedies 9 ||in support of a claim of equitable tolling. However, motions for reconsideration may not 10 used as a vehicle for raising new arguments or allegations that could have been raised 11 ||previously. See Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995) 12 ||(“The district court did not abuse its discretion in declining to consider an argument 13 ||raised for the first time on reconsideration without a good excuse.”). When drafting his 14 FAC, Plaintiff had the benefit of the Court’s full analysis regarding the statute of 15 || limitations issue and Plaintiff's burden to plead facts in support of a claim of entitlement 16 || to equitable tolling. See Doc. No. 3 at 7-8. The time to state any such factual allegations 17 || was then not now. Moreover, a motion for relief from judgment may not be used as a 18 || vehicle to re-litigate old matters, raise new arguments, or present evidence that could 19 ||have been raised prior to entry of the judgment. See Exxon Shipping Co. v. Baker, 544 20 || U.S. 471, 486-87 (2008); see also Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 21 (9th Cir. 2000). 22 Conclusion 23 Based on the foregoing, the Court DENIES Plaintiff's motion. 24 IT IS SO ORDERED. 25 Dated: October 23, 2020 Ja THs Ly □□□ □ 26 Hon. MICHAEL M. ANELLO 07 United States District Judge 28 3 ee