IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 13, 2009
ASKIA S. ASHANTI, PLAINTIFF,
CA. DEPT. OF CORRECTIONS, ET AL., DEFENDANTS.
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On January 22, 2009, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis, with one exception that does not affect the conclusion.
Plaintiff seeks relief from judgment, pursuant to Fed. R. Civ. P. 60(b). The magistrate incorrectly states that "any motion made pursuant to Rule 60(b) shall be made 'not more than one year after the judgment.'" This provision applies only to motions made under Rule 60(b)(1)-(3). Plaintiff's motion, arguably brought under Rule 60(b)(6), is not subject to this limit, and only must be brought within a reasonable time. Nonetheless, untimeliness was provided as an alternate ground for the magistrate's recommendation: the magistrate correctly determined that the motion should be denied on the merits.
Accordingly, IT IS HEREBY ORDERED that:
1. Subject to the clarification above, the findings and recommendations filed January 22, 2009, are adopted in full;
2. Plaintiff's motion for relief from judgment (Docket #115), pursuant to Rule 60(b), is denied; and
3. Plaintiff's motion for the appointment of counsel (Docket #117) is denied.
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