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Long v. California Dep't of Corrections and Rehabilitation

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 31, 2010

JAMES F. LONG, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANTS.

The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DENYING PLAINTIFF'S PETITION FOR MORE TIME TO FILE AN AMENDED COMPLAINT

Plaintiff James F. Long ("Long"), a pro se prisoner, filed a Complaint against the California Department of Corrections and Rehabilitation in October 2008 and requested to proceed in forma pauperis. In early 2009, this court granted his request to proceed in forma pauperis, and screened his Complaint. This court dismissed his Complaint, gave him until February 26, 2009, to file any amended complaint, and emphasized that judgment would automatically be entered if an amended complaint was not timely filed. Long failed to file any amended complaint, and judgment was entered on March 10, 2009. Now, almost a year later, Long brings a petition asking the court for more time to file an amended complaint. This court denies the petition.

This court construes his motion as a motion for relief from a judgment or order under Rule 60(b) of the Federal Rules of Civil Procedure. Under Rule 60(b), a court may relieve a party from final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

Long appears to seek relief from judgment under Rule 60(b)(6), any other reason justifying relief, as no other subpart of Rule 60(b) applies. Long says that he started to receive threatening calls about his lawsuit in February 2009, which scared him and forced him to flee California. Long appears to have been on parole at that time. He says that he received the court's screening order, (which was sent via mail to his residence in California in February 2009) in June 2009. After that date, he returned to prison. Long says that he "can explain more" as soon as he is released. These reasons are insufficient to justify relief from judgment.

First, the court's order was mailed to Long at his home address on February 9, 2009. He says that he did not timely receive this court's order because he had left California by the time the order was mailed. If that is the case, then at the very least, Long should have notified the court of the change in his circumstances. In any event, he says that he received the order in June 2009. If he received the order then, he could have acted at that time, instead of waiting eight months.

Second, to the extent Long argues that his fear of retribution justifies the reopening of his case and a grant of additional time (until he is out of jail) to file an amended complaint, this court is unpersuaded. If a mere assertion of a fear of retribution sufficed to justify waiting until a prisoner was released, a court would never be able to timely enter judgment or dispose of cases. Given the absence of any explanation of whom or what Long fears, an extension is unwarranted.

This court denies Long's petition.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, August 31, 2010

20100831

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