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Jesse E. Bejaran, #F-81663 v. Brian K. Lueth

July 15, 2011

JESSE E. BEJARAN, #F-81663
PLAINTIFF,
v.
BRIAN K. LUETH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER: (1) DENYING PLAINTIFF'S MOTION TO REOPEN OR REINSTATE; (2) GRANTING PLAINTIFF'S MOTION TO FILE A LATE APPEAL; (3) DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL; AND (4) DENYING PLAINTIFF'S REQUEST FOR ORDER GRANTING ACCESS TO LAW LIBRARY

On December 01, 2010, Plaintiff filed the instant Motion to Reopen or Reinstate. After reviewing the motion and its supporting documents, the Court DENIES Plaintiff's Motion to Reopen or Reinstate, GRANTS Plaintiff's Motion to File a Late Appeal, DENIES Plaintiff's Request for Appointment of Counsel, and DENIES Plaintiff's Request for Order Granting Access to Law Library. (Doc. # 67.)

BACKGROUND

The Court has recounted the facts of this case extensively in prior Orders. (Docs. ## 42, 52, 65.) Jesse E. Bejaran, ("Plaintiff") was a prisoner at the Deuel Vocational Institution ("DVI"), under the custody of the California Department of Corrections and Rehabilitation ("CDCR") at the time the original Complaint was filed on April 14, 2008. (Doc. # 1; Doc. # 39 at 11.) On August 14, 2009, Plaintiff filed his Fifth Amended Complaint while incarcerated at Corcoran State Prison ("Corcoran"). (Doc. # 39 at 11.) In an order filed on December 8, 2009, the Court screened the complaint, construing it liberally, and allowed certain deliberate indifference claims against Lt. Ruiz, Lt. Rodriguez, P/A Street, C/O Hughes, C/O Mayes, C/O Huesel, C/O Loiler, C/O Franco, C/O Cardoza, C/O Mendoza, and C/O Braga (collectively "Defendants") for varying incidents. (Doc. # 42 at 17.) The four claims, all from Plaintiff's incarceration at DVI, consisted of: (1) denied use of a cane; (2) denied housing on the first tier; (3) denial of medical treatment and medication after his fall down the stairs; and (4) lack of adherence to the CDCR's inmate escort policy. (Id. at 2.) The Court dismissed the claims against Warden Moore, CDCR, and those under the ADA. (Id. at 17.)

On May 24, 2010, Defendants filed a Motion to Dismiss For Failure to Exhaust Administrative Remedies ("Motion to Dismiss"). (Doc. # 54 at 2.) On July 23, 2010, the Court signed an Order Granting Defendants' Motion to Dismiss. (Doc. # 65.) The Court concluded that given that Plaintiff had previously been allowed to file five amended complaints in the instant case, further amendment would be futile, and the clerk of the court was directed to enter judgment in favor of all Defendants. (Id.)

On December 1, 2010, Plaintiff filed a Motion to Reopen or Reinstate his case ("Motion"), requesting that the Court allow Plaintiff to proceed in the instant action. ("Mot.," Doc. # 67.) The Court also construes Plaintiff's Motion as a Motion to File a Late Appeal. (Id. at 1--2.) Within Plaintiff's Motion, he also filed a Request for Appointment of Counsel (Mot. at 2), and a Request for a Court Order to Attend the Law Library (Mot. at 5). On the same day, Plaintiff filed a Notice of Change of Address, indicating that he is currently incarcerated in San Quentin, California. (Doc. # 68.)

DISCUSSION

I. Motion to Reopen or Reinstate

In Plaintiff's Motion, he states that he has not received any notice or decision from the Court as to Defendants' Motion to Dismiss, and that he "assume[s] this case has been dismissed for failure to exhaust administrative remedies," thus requesting the Court allow him an opportunity to reopen his case. (Mot. at 1--2.) The Court construes Plaintiff's Motion as a request for relief, pursuant to Federal Rules of Civil Procedure ("FRCP") 60(b), from the Court's July 23, 2010 Order Granting Defendants Motion to Dismiss.

FRCP 60(b) grants district courts discretion to relieve a party from a judgment or order only upon a showing of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. No. 1J, v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). FRCP 60(b) provides a mechanism for parties to seek relief from a judgment when "it is no longer equitable that the judgment should have prospective application," or when there is any other reason justifying relief from judgment. Jeff D. v. Kempthorne, 365 F.3d 844, 853--54 (9th Cir. 2004) (quoting Fed. R. Civ. P. 60(b)).

Under FRCP 60(b)(1)*fn1 , a court may "relieve a party or a party's legal representative from final judgment, order or proceeding" . . . based on "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1); see also Engleson v. Burlington Northern Railroad Co., 972 F.2d 1039, 1043 (9th Cir. 1992) ("To qualify for relief under Rule 60(b)(1), the movant must demonstrate mistake, inadvertence, surprise, or excusable neglect.") (quotations and citation omitted). The Ninth Circuit has made clear that "[n]either ignorance nor carelessness on the part of the litigant or his attorney provide grounds for relief under Rule 60(b)(1)." Id. A motion under Rule 60(b)(1) must be made within a "reasonable time." Fed. R. Civ. P. 60(c)(1). FRCP 60(b) "guides the balance between the overriding goal of deciding cases correctly, on the basis of their legal and factual merits, with the interest of both litigants and the courts in the finality of judgments." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695 (9th Cir. 2001) (citing Pena v. Seguros La Comercial, 770 F.2d 811, 814 (9th Cir. 1985)).

Plaintiff's primary factual arguments in support of his Motion are that he did not receive notice of the judgment entered against him, and that he is mentally and emotionally unstable and depressed. See (Mot. at 1--5.) Plaintiff also states that his last filing in this case was a response with exhibits filed in May 2010. (Mot. at 1.) First, Plaintiff's statement that his last filing was in May 2010 is incorrect. On June 8, 2010, Plaintiff filed a Motion for Extension of Time to file a response to Defendants' Motion to Dismiss (Doc. # 55), which was then granted by the Court (Doc. # 56). Plaintiff then filed his Opposition to the Motion to Dismiss on July 9, 2010 (Doc. # 59), along with a Notice of Change of Address (Doc. # 60) and a Motion to Appoint Counsel (Doc. # 61).

The Court granted Defendants' Motion to Dismiss, and on July 23, 2010, judgment was entered in favor of Defendants pursuant to the Court's Order. The Court's records indicate that Plaintiff's July change of address was received, and that on July 26, 2010, the Court mailed to Plaintiff both the Order Granting Defendants' Motion to Dismiss (Doc. # 65) and the judgment in the case (Doc. # 66). The copies that were mailed to Plaintiff were not returned to the Court as undeliverable.

Further, despite having the duty to prosecute his case, Plaintiff failed to inquire into the status of this action until almost five months after judgment was entered. Only after almost five months passed, once Plaintiff was re-incarcerated, did he file the instant Motion. Moreover, Plaintiff's change of address notice indicates that at the time the Motion to Dismiss was decided, Plaintiff was out of jail. He therefore had the ability to seek information about the status of his case in numerous different ways, including visiting the local courthouse. Plaintiff offers no explanation for why he did not check into the progress or status of the case until approximately five months after judgment had been entered, and has not set forth any evidence that shows he has ...


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