Holestine v. R.J. Donovan Correctional Facility ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERNEST KELLY HOLESTINE, Case No.: 18-CV-2094-AJB(WVG) Plaintiff, 12 ORDER GRANTING PLAINTIFF’S v. 13 MOTION FOR RELIEF FROM R.J. DONOVAN CORRECTIONAL COURT’S ORDER ADOPTING THE 14 FACILITY et al., REPORT AND RECOMMENDATION 15 Defendants. (Doc. No. 58) 16 17 Currently pending before this Court is Ernest Kelly Holestine’s (“Plaintiff’) motion 18 for relief from the Court’s order adopting the Report and Recommendation (“R&R”). (Doc. 19 No. 58.) Defendants have not objected to Plaintiff’s motion. For the reasons set forth 20 below, the Court GRANTS Plaintiff’s motion for relief. (Doc. No. 58.) 21 I. BACKGROUND 22 Plaintiff, a prisoner proceeding pro se, filed a 42 U.S.C. § 1983 action on September 23 6, 2018. (Doc. No. 1.) On October 3, 2019, Plaintiff filed a Second Amended Complaint. 24 (Doc. No. 46.) United States Magistrate Judge William V. Gallo issued a R&R 25 recommending that this Court: (1) grant Defendants’ motion to dismiss with regard to 26 Plaintiff’s Equal Protection claim; (2) deny in part as moot Defendant’s motion to strike; 27 (3) grant Plaintiff’s motion for leave to file Third Amended Complaint; and (4) grant 28 1 Plaintiff’s motion for leave to increase page limit. (Doc. No. 55.) Finding that there were 2 no objections to the R&R, and that the R&R did not contain clear error, the Court issued 3 an Order adopting the R&R in its entirety. (Doc. No. 56.) On October 2, 2020, Plaintiff 4 filed a motion for relief from the Court’s order adopting the R&R pursuant to Rule 60(b) 5 of the Federal Rules of Civil Procedure. (Doc. No. 58.) Plaintiff alleges that he was never 6 served with a copy of the Magistrate Judge’s R&R and that this extraordinary circumstance 7 entitles him to Rule 60(b) relief. Defendants have not opposed Plaintiff’s motion. 8 II. DISCUSSION 9 Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, a district court may 10 grant a motion for relief from an order when there is any reason not previously considered 11 that justifies granting relief from operation of the order. See Fed. R. Civ. P. 60(b). A party 12 merits relief under Rule 60(b) if he demonstrates “extraordinary circumstances” prevented 13 him from taking timely action to prevent or correct an erroneous order. See Cmty. Dental 14 Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). Relief under Rule 60(b) normally will 15 not be granted unless the moving party is able to show both injury and that circumstances 16 beyond his control prevented timely action to protect his interests. Id. 17 With his motion, Plaintiff files a declaration stating that he never received Judge 18 Gallo’s R&R. However, Plaintiff explains that on September 15, 2020, Plaintiff received 19 the Court’s order adopting the R&R. (Doc. No. 58 at 6.) That same date, on September 15, 20 2020, Plaintiff sent a request for interview form to the prison’s mailroom, and requested a 21 copy of Plaintiff’s incoming legal mail log. (Id.) The next day, Plaintiff received the mail 22 log, which shows that between the time the R&R was issued, and when Plaintiff received 23 the Court’s order adopting the R&R, Plaintiff only received two pieces of legal mail, 24 neither of which was the R&R. (Id.) Plaintiff contends that he did not become aware of the 25 R&R until he received the Court’s order adopting the R&R. He further maintains that he 26 did not file objections to the R&R because he never received a copy of the R&R. 27 Defendants have not filed an opposition to dispute Plaintiff’s motion. 28 After reviewing the record, the Court finds that Plaintiff has demonstrated injury 2 because he had no opportunity to file objections to the R&R, and that his inability to file 3 objections resulted from circumstances beyond his control. The Court concludes that 4 || Plaintiff has demonstrated extraordinary circumstances sufficient to warrant relief from the > || order because he never received a copy of the R&R and was therefore unable to file 6 objections. 7 CONCLUSION 8 In light of the above, the Court GRANTS Plaintiff's motion for relief from the 9 ||Court’s August 28, 2020 order adopting the R&R. (Doc. No. 58). The Court VACATES 10 August 28, 2020 order adopting the R&R. (Doc. No. 56) Plaintiff may file objections 11 |/to the R&R no later than December 28, 2020. Any party may file a reply to the objections 12 || to the R&R no later than January 11, 2021. 13 14 IT IS SO ORDERED. 15 ||Dated: November 13, 2020 © 16 Hon. Anthony J. attaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28