UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
November 16, 2009
TONY DAVIS, CDCR #J-76575, PLAINTIFF,
COURT'S TRUST COMPANY OF THE WEST, DEFENDANTS.
The opinion of the court was delivered by: Honorable Larrya Lanburns United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM OCTOBER 28, 2008 ORDER PURSUANT TO FED.R.CIV.P. 60(b) [Doc. No. 6]
I. PROCEDURAL HISTORY
Plaintiff, an inmate currently incarcerated at the California Correctional Institution located in Tehachapi, California, and proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983 on October 20, 2008, along with a Motion to Proceed in forma pauperis ("IFP").
On October 28, 2008, this Court dismissed Plaintiff's civil action as frivolous because it was duplicative of Davis v. Trust Company of the West, et al., S.D. Cal. Civil Case No. 06-0793 W (WMc). See Oct. 28, 2008 Order at 2. The Court also denied Plaintiff's Motion to Proceed IFP as moot. Id. at 3.
Plaintiff has now filed a "Motion for Relief from Judgment Under Federal Rules of Civil Procedure, Rule 60(b) [Doc. No. 6].
II. PLAINTIFF'S MOTION FOR RELIEF FROM THE COURT'S JUDGMENT
Under Rule 60, a motion for "relief from a final judgment, order or proceeding" may be filed within a "reasonable time," but usually must be filed "no more than a year after the entry of the judgment or order or the date of the proceeding." FED.R.CIV.P. 60(c). 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 is seeking to sue the Bank whom he alleges wrongfully sold his mother's home without notifying him after she passed away in 2005. Plaintiff filed an action against Defendant Bank of the West in 2006 which can be found in Davis v. Trust Company of the West, et al., S.D. Cal. Civil Case No. 06-0793 W (WMc). In the 2006 action, Plaintiff was granted leave to amend on two occasions but ultimately failed to file a Second Amended Complaint. Thus, his action was dismissed by the Court in 2006. Three years later Plaintiff attempted to file this same action which this Court dismissed as duplicative of the 2006 action. Plaintiff claims that he did not know how to file this previous action due to his "physical and mental limitations, mental anguish and distress." See Pl.'s Mot. at 2. Even if the Court were to accept Plaintiff's action, filed three years later, he failed to heed any of the instructions that the Court issued to him in 2006. Specifically, Plaintiff continues to seek damages against a private entity for violation of his Eighth Amendment rights pursuant to § 1983. As Plaintiff has been informed on numerous occasions, Plaintiff has not alleged any action on the part of the Bank that sold his mother's home which was taken "under color of state law." See 42 U.S.C. § 1983. Private parties do not generally act under color of state law; thus, "purely private conduct, no matter how wrongful, is not within the protective orbit of section 1983." Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550 (9th Cir. 1974); see also Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991).
Plaintiff does not offer any facts as to why he waited three years to re-file an action he previously litigated nor does he offer any rationale for waiting more than a year to challenge this Court's dismissal.
III. CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion for Relief from the Court's October 28, 2008 Order [Doc. No. 6] pursuant to FED.R.CIV.P. 60(b) is DENIED.
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