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Nesbitt v. Wakabayshi

April 29, 2009

ROBERT H. NESBITT JR., PLAINTIFF,
v.
NEIL WAKABAYSHI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. On April 20, 2006, the court dismissed this action with prejudice in light of plaintiff's second failure to file a timely pretrial statement and his failure to prosecute this action. On the same day, the case was closed. On April 30, 2007, plaintiff filed a motion based on Rule 60(b) of the Federal Rules of Civil Procedure. On June 21, 2007, the court denied plaintiff's motion. Plaintiff appealed, and on January 15, 2008, the United States Court of Appeals for the Ninth Circuit affirmed in part and vacated in part this court's order denying plaintiff's Rule 60(b) motion. The Ninth Circuit remanded the case for reconsideration of whether plaintiff is entitled to relief under the catch-all provision of Rule 60(b)(6).

BACKGROUND

In his Rule 60(b) motion, plaintiff claimed that the "defendants knowingly set in motion a plan to prevent, and hamper plaintiff from prosecuting his case, and that their actions helped influence the court's decision to dismiss plaintiff's case thus entitling plaintiff relief from judgment." Plaintiff argued that he was entitled to relief under Rule 60(b)(3) and Rule 60(b)(6).

Specifically, plaintiff alleged that, on December 23, 2005, while still housed at the Solano County Jail, Officer Baily called him to the officers' desk. Upon arrival, plaintiff was immediately placed in handcuffs and was told that he was being transferred to San Quentin State Prison. Plaintiff requested time to pack his personal and legal property, but officers told him that they would pack his property for him and that his belongings would transfer to San Quentin with him.

On December 29, 2005, prison officials at San Quentin placed plaintiff's housing section on lockdown following a riot. According to plaintiff, the lockdown lasted through March 2006. During this time, inmates could not access the law library. Plaintiff alleges that he wrote to various family members and friends to contact the jail regarding his property to no avail.

In early March of 2006, plaintiff received a letter from a family member stating that they had received fifteen boxes from the county jail. Plaintiff wrote home and asked his parents to go through the boxes until they came across a case entitled "Nesbitt v. Wakabayshi." He asked them to provide him with the case number as well as address of the court and defense counsel.

After hearing back from his family in the beginning of April, plaintiff began drafting a notice of change of address. However, before he could mail the document to the court, prison officials transferred him to Pelican Bay State Prison. Upon arrival there, plaintiff alleges that prison officials took his belongings and told him that he could not access the law library unless he could prove that he had a pending court deadline, which he could not do because he did not have his legal materials.

On May 12, 2006, after receiving his personal and legal property, plaintiff mailed a notice change of address to the court, together with declaration asking the court to vacate any orders it had issued. By this time, however, the court had dismissed plaintiff's action. On April 30, 2007, plaintiff filed his motion based on Rule 60(b).

As noted above, on June 21, 2007, the court denied plaintiff's Rule 60(b) motion. Specifically, the court determined that plaintiff's motion failed to demonstrate that he was entitled to relief under Rule 60(b)(3) or Rule 60(b)(6) because he had not shown that defendants engaged in fraud or other misconduct or that there was any other reason to justify relief from the judgment. To the contrary, plaintiff's motion demonstrated that he had ample notice and several opportunities to comply with the court's order to file a pretrial statement well before he was transferred to San Quentin.

In particular, by order filed March 21, 2005, the court directed plaintiff to file and serve his pretrial statement on or before September 30, 2005. The pretrial conference was set for October 21, 2005, and a jury trial was scheduled for January 18, 2006. Due to plaintiff's failure to file a timely pretrial statement, on October 11, 2005, the court was required to vacate the pretrial conference and order plaintiff to file a declaration showing good cause for his failure to timely file a his pretrial statement. On October 14, 2005, the court received plaintiff's untimely and deficient pretrial statement. Notwithstanding defendants' requests that the court dismiss this case as a sanction for plaintiff's conduct, the court instead permitted plaintiff to proceed and ordered plaintiff to file and serve a proper pretrial statement by March 3, 2006. The court warned plaintiff that "failure to calculate deadlines correctly and comply with them may have serious consequences." Plaintiff once again failed to file a pretrial statement in accordance with this court's order. As a result, the court dismissed this case with prejudice due to plaintiff's second failure to file a timely pretrial statement and his failure to prosecute this action.

THE NINTH CIRCUIT'S DECISION

The Ninth Circuit held that this court did not abuse its discretion when it denied plaintiff's motion for relief from judgment pursuant to Rule 60(b)(3) because plaintiff had failed to show clear and convincing evidence of fraud, misrepresentation, or misconduct. However, the court vacated the portion of this court's order denying plaintiff's motion under Rule 60(b)(6). The Ninth Circuit explained that this court denied plaintiff's motion because he had several opportunities to comply with the court's order to file a pretrial statement before he was transferred to San Quentin and failed to do so but that the relevant inquiry was whether plaintiff could have filed his pretrial statement by the court-imposed March 3, 2006, deadline. In the Ninth Circuit's view, plaintiff had alleged that there were ...


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