The opinion of the court was delivered by: Richard C. Tallman United States Circuit Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM DISMISSAL OR COURT ORDER
Plaintiff Alvin Bernard Jones ("Plaintiff") filed a Motion for Relief from this Court's Order Granting Defendants' Motion for Sanction of Dismissal pursuant to Federal Rule of Civil Procedure 60(b)(1). (Doc. No. 72.) For the following reasons, the Court denies Plaintiff's Motion for Relief from Dismissal or Court Order.*fn1
Plaintiff, a former state prisoner, brought this civil rights action pursuant to 42 U.S.C. § 1983 against California Department of Corrections Officers Frazesn, Dudder, Ayers, Solarzano, and Bess (collectively "Defendants") asserting an excessive force claim under the Eighth Amendment and a due process claim under the Fourteenth Amendment. The action was filed on December 21, 2007. After several delays, discovery proceeded according to a July 16, 2008, Discovery Order (Doc. No. 18), as well as a June 1, 2009, Supplemental Discovery Order and Scheduling Order. (Doc. No. 35.)
Pursuant to those orders, Plaintiff's deposition commenced on July 30, 2009. He was incarcerated at the time. However, during the deposition at the prison where he was confined, Plaintiff stated that he was unable to continue because he was not feeling well and was going to be sick. He asked to return to his cell. The deposition was adjourned and re-noticed for August 25, 2009, shortly after his release from prison. Defendants contacted Plaintiff after his release from prison to confirm the second deposition date, time, and location. Plaintiff acknowledged that he would appear.
But on August 25, 2009, Plaintiff failed to appear for the continued deposition. Defendants waited for approximately one hour. They contacted Plaintiff by phone from the deposition location. Plaintiff advised that he had decided he would not be attending the deposition and provided three reasons for his failure to appear: (1) his vehicle had broken down; (2) he had consulted an unnamed attorney who advised him that he should not attend the deposition; and (3) he was upset because he did not obtain a copy of the transcript of his first deposition. Defendants took a certificate of non-appearance.
As a result of Plaintiff's failure to complete his first deposition, this Court was forced to reschedule case management deadlines and to continue the trial date in its Second Supplemental Discovery Order and Scheduling Order in order to ensure that discovery was completed before pretrial motions were due. (Doc. No. 41.) As previously explained by this Court, there are more than 2,000 prison litigation cases like Plaintiff's currently pending in the Eastern District of California, and inadequate numbers of judges available to adjudicate them. A judicial emergency has been declared by the Ninth Circuit Judicial Council. More than eighty visiting judges, including the undersigned, have been designated to help handle the caseload. Resident active judges in the district are currently carrying more than 1,200 cases each. Available courtrooms are hard to find when a previous trial date must be rescheduled. The impact on court operations occasioned by uncooperative litigants aggravates the overload. The Second Supplemental Discovery Order specifically admonished Plaintiff that failure to abide by his obligations to comply with this Court's case management orders would result in the imposition of sanctions, including, but not limited to, dismissal of this action pursuant to Local Rule 11-110 (E.D. Cal.). (Doc. No. 41.)
Defendants moved for sanction of dismissal and attorney fees on September 3, 2009. (Doc. No. 43.) Plaintiff failed to oppose the motion. On, September 10, 2009, Defendants Frazesn, Dudder, Ayers, and Solarzano moved for summary judgment. (Doc. No. 45.) On September 17, 2009, Defendant Bess moved for summary judgment. (Doc. No. 48.) Plaintiff did not respond to either motion. On October 2, 2009, Plaintiff failed to timely file his pretrial statement pursuant to the Second Supplemental Discovery Order. (Doc. No. 41.) On October 8, 2009, this Court granted Defendants' motion for sanction of dismissal but denied the motion for attorney fees. (Doc. No. 52.) Judgment was entered in favor of Defendants the same day. (Doc. No. 53.) On October 9, 2009, apparently unaware that the case had been dismissed, Plaintiff finally filed his Opposition to Defendants' Motion for Summary Judgment. (Doc. No. 54.)
On October 14, 2009, Plaintiff timely filed a Motion for Reconsideration. (Doc. No. 55.) An Order Denying Plaintiff's Motion for Reconsideration was issued on April 13, 2010. (Doc. No. 69.) Given the timing of the motion, the Court construed Plaintiff's motion as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e), but addressed the merits of the motion under both Rule 59(e) and Rule 60(b). The Court found that Plaintiff failed to show any grounds that would entitle him to Rule 59(e) relief under Ninth Circuit precedent. In considering the merits of Plaintiff's motion through the Rule 60(b) lens, the Court determined that the excuses proffered by Plaintiff for failing to attend his second deposition did not amount to excusable neglect within the meaning of Rule 60(b)(1). Specifically, in the order denying the motion, the Court stated that "Plaintiff's arguments are not credible and are rejected as unconvincing." The Court also determined that Plaintiff did not offer any explanation for his failure to timely file a pretrial statement or his failure to oppose Defendants' Motion for Sanction of Dismissal itself.
On November 5, 2009, before the Court ruled on his Motion for Reconsideration, Plaintiff appealed this Court's dismissal order, and the appeal was stayed until the resolution of the motion. Following the denial of Plaintiff's Motion for Reconsideration, the parties stipulated to a dismissal of the appeal. The United States Court of Appeals for the Ninth Circuit issued an order dismissing the appeal on May 17, 2010.
Plaintiff was proceeding pro se throughout this litigation, but has now obtained counsel who filed the pending Motion for Relief from the Order Granting Defendants' Motion for Sanction of Dismissal. (Doc. No. 72.)
The Court now denies Plaintiff's Motion for Relief from Dismissal or Court Order.
II. Plaintiff's Motion for Relief from Dismissal or Court Order
Plaintiff seeks relief from dismissal of his civil action under Federal Rule of Civil Procedure 60(b)(1). Plaintiff alleges that the Order Granting Defendants' Motion for Sanction of Dismissal resulted from several mistakes of fact underlying this ...