IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 7, 2009
VIOLET RAMIREZ, PLAINTIFF,
CITY OF STOCKTON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DEEMING PLAINTIFF'S "NOTICE" FILED ON APRIL 3, 2009 (Doc. 10) TO BE A MOTION TO SET ASIDE JUDGMENT PURSUANT TO RULE 60(b), FEDERAL RULES OF CIVIL PROCEDURE, AND DENYING DEEMED MOTION
On September 19, 2007 Plaintiff, a state prisoner proceeding in pro per, filed a Complaint pursuant to 42 U.S.C. § 1983, against the City of Stockton and two Stockton police officers seeking damages as a result of the death of her son during a high-speed chase of a third person.
By Order filed on October 10, 2007, the United States Magistrate Judge dismissed Plaintiff's complaint with leave to amend.
On December 11, 2007, the United States Magistrate Judge recommended that this action be dismissed because of Plaintiff's failure to comply with the October 10, 2007 Order directing Plaintiff to file an amended complaint because of the Complaint's failure to state a claim upon which relief can be granted. Plaintiff did not file objections to the recommendation. By Order filed on January 23, 2008, the recommendation was adopted by the Court and the action dismissed. Judgment was entered for Defendants was entered on January 23, 2008. On April 3, 2009, Plaintiff filed a "Notice," in which she states:
On April 18, 2003, my son Angel Cecil Ramirez was killed in a public chase. My son was an innocent bystander & was hit while the police were chasing their suspect, and subsequently killed in the accident. I filed a wrongful death suit in Sept. 2007. I had a nervous breakdown in June 2008. Therefore have not been able to continue my wrongful death case.
I am recovered now. I am notifying you of these plans to continue with this case.
The Court deems Plaintiff's "Notice" to be a motion to for relief from a final judgment or order pursuant to Rule 60(b), Federal Rules of Civil Procedure.
Plaintiff's deemed motion is DENIED. The docket establishes that Plaintiff was served with the October 10, 2007 Order and the December 11, 2007 recommendation of dismissal. In addition, Plaintiff was served with the January 23, 2008 Order adopting the recommendation and dismissing the action and the Judgment entered on January 23, 2008. By her own admission, Plaintiff did not suffer a nervous breakdown until June 2008. Plaintiff makes no showing that anything prevented her from complying with the October 10, 2007 Order, filing objections to the recommendation, or moving to set aside the January 23, 2008 Order and Judgment prior to June, 2008.
IT IS SO ORDERED.
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