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Billups v. Howard

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 12, 2009

DEREK LEE BILLUPS, PLAINTIFF,
v.
JEAN HOWARD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT (Doc. 56)

This action was dismissed on February 26, 2008, without prejudice, for Plaintiff's failure to exhaust administrative remedies prior to filing suit. On January 20, 2009, Plaintiff, a state prisoner who was proceeding pro se, filed a motion for relief from judgment. (Doc. 56).

Pursuant to Federal Rule of Civil Procedure 60(b), the Court may relieve a party from final judgment for the specific reasons enumerated in the Rule or for any other reason that justifies relief. Relief under this latter provision requires the moving party to "demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the action in a proper fashion." Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations and citation omitted). The "Rule is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Id. (internal quotations and citation omitted). Plaintiff does not cite to a specific subsection of Rule 60(b) and the Court construes his motion was being brought pursuant to Rule 60(b)(6), which appears to be most applicable.

Plaintiff asserts that he has exhausted all administrative remedies against defendants. In support of his motion, Plaintiff has re-submitted copies of grievances bearing Log Nos. SCC-03-00794 and ISP 03-00542 that were previously filed by Plaintiff as exhibits to his opposition to defendants' motion to dismiss. See Doc. 42, Exh.1. These exhibits, along with Plaintiff's arguments in opposition, were considered and addressed by the Court in its Findings and Recommendations. (Doc. 50). Plaintiff also refers the Court to exhibits filed by Plaintiff with his objections to the Magistrate Judge's Findings and Recommendations. (Doc. 52). Again, these exhibits were considered by the Court and addressed in the Order Adopting the Findings and Recommendations issued February 26, 2008.

This action was properly dismissed for Plaintiff's failure to exhaust administrative remedies. Plaintiff has not shown any grounds entitling him to relief from judgment, and his motion, filed January 20, 2009, is THEREFORE DENIED.

IT IS SO ORDERED.

20090312

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