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Mark A. Duross v. California State Prison-Warden

March 28, 2011

MARK A. DUROSS, PLAINTIFF,
v.
CALIFORNIA STATE PRISON-WARDEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On March 9, 2011, the district court remanded this case to the Superior Court of California, County of Sacramento, and directed the Clerk of Court to process plaintiff's appeal. (Dkt. No. 20.) Plaintiff's appeal is pending in the Court of Appeals for the Ninth Circuit.

On March 15, 2011, plaintiff filed a document styled, "Notice of Motion for Hearing of motion to Vacate Judgment." (Dkt. No. 22.) Although plaintiff's motion is not entirely clear, the court construes plaintiff's motion as a motion to vacate the order of remand under Rule 60(b) of the Federal Rules of Civil Procedure.

Rule 60(b) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding 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).

Plaintiff's filing is very unclear. Plaintiff has appended as exhibits documents that appear to be copies of filings from his Sacramento County Superior Court action, as well as copies of every document filed in the instant action,*fn1 including court orders. (Dkt. No. 22, passim.) Plaintiff is advised that the instant court record contains the documents initially filed in the Sacramento County Superior Court proceeding that was removed to this court. (Dkt. No. 1.) In addition, the court electronically retains all filings in the instant action; plaintiff is not required to provide copies of those filings either. Plaintiff may refer to previously-filed documents by name, date, or other identifying feature, rather than re-submitting the document.

On the first page of the motion to vacate, in the section reserved for reasons for the motion to vacate, plaintiff states (1) he does not seek discharge from state prison; and (2) plaintiff was granted a fee waiver, but would file another fee waiver. (Dkt. No. 22 at 1.) Plaintiff ...


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