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Gough-Adshima v. Schwarzenegger

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 30, 2009

JEFF S. GOUGH-ADSHIMA, CDCR #V-64431, PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO FED.R.CIV.P. 60(b) [Doc. No. 5]

I. PROCEDURAL HISTORY

On May 29, 2008, Jeff Gough-Adshima ("Plaintiff"), a former state inmate housed at Chuckawalla State Prison located in Blythe, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. The Court issued an Order on July 3, 2008 granting Plaintiff's Motion to Proceed in forma pauperis ("IFP") and sua sponte dismissed his Complaint for failing to state a claim and for seeking money damages against immune Defendants. (See July 3, 2008 Order at 6-7.) Plaintiff was given leave to file an Amended Complaint but never did so. (Id.) On March 25, 2009, Plaintiff filed a "Motion to Vacate, Set Aside and Reopen the Civil Proceedings" pursuant to FED.R.CIV.P. 60(b) [Doc. No. 5].

II. PLAINTIFF'S MOTION TO VACATE FINAL JUDGMENT [Doc. No. 5]

Under Rule 60(b), a motion for "relief from judgment or order" may be filed within a "reasonable time," but usually must be filed "not more than one year after the judgment, order, or proceeding was entered or taken." FED.R.CIV.P. 60(b). Reconsideration under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any other reason justifying relief. FED.R.CIV. P. 60(b).

Here, Plaintiff claims that he did not receive the Court's Order issued on July 3, 2008 because he was released from Chuckawalla State Prison on June 18, 2008. (See Pl.'s Mot. at 6.) While nearly a year has passed since the Court issued its previous Order, and Plaintiff's Complaint suffered from some serious deficiencies of pleading, the Court will reopen the case and permit Plaintiff to file a First Amended Complaint.

However, Plaintiff is cautioned that he must comply with the Court's July 3, 2008 Order in all respects and he must comply with FED.R.CIV.P. 8. If Plaintiff's Amended Complaint does not state a claim or seeks money damages against immune Defendants, the Court will dismiss this action.

III. CONCLUSION AND ORDER

Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion for Relief from Judgment [Doc. No. 5] pursuant to FED.R.CIV.P. 60(b) is GRANTED. The Clerk of Court is directed to reopen the case. Plaintiff is further GRANTED forty five (45) days leave from the date this Order is "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading noted in the Court's July 3, 2008 Order. Plaintiff's Amended Complaint must be complete in itself and without reference to his original Complaint. See S.D. CAL. CIVLR 15.1.

IT IS SO ORDERED.

20090330

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