The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 63)
On April 15, 2011, Plaintiff Anthony Dean Slama ("Plaintiff") filed a motion for reconsideration pursuant to Fed. R. Civ. P. 60(b) and a proposed order seeking to substitute himself as attorney of record in this action and place himself in propria persona. (Docs. 63, 65.) On July 27, 2011, the Court granted Plaintiff's request concerning the substitution of counsel after having received a statement of non-opposition to the substitution from Plaintiff's former attorney, Steven
A. Geringer. (Docs. 71, 72.) Plaintiff is thus currently representing himself in propria persona. The Court now considers Plaintiff's motion for reconsideration pursuant to Fed. R. Civ. P. 60(b).
For the reasons set forth below, the Court RECOMMENDS that Plaintiff's motion be GRANTED.
On December 17, 2007, Plaintiff, representing himself in propria persona, filed this action in the Madera Superior Court. Defendant City of Madera ("City") removed the action to federal court on June 9, 2008, and filed a motion to dismiss on June 25, 2008. (Docs. 1, 6.) On August 7, 2008, the Court granted the motion to dismiss. (Doc. 11.)
On August 28, 2008, Plaintiff, then represented by attorneys Daniel Martin and Brenda C. Hook, filed an amended civil rights complaint against Defendants City, Madera Police Department ("MPD"), Officer Chavez, and Officer Sheklanian*fn1 (collectively, "Defendants"). (Doc. 15.) On September 11, 2008, Defendants MPD and Officers Chavez and Sheklanian filed an answer to Plaintiff's amended complaint, and Defendant City filed a motion to dismiss. (Docs. 17, 18.)
On September 2, 2008, based upon representations by Ms. Hook, the Court ordered that she file a proposed substitution of attorney, a motion to withdraw as attorney, or a statement that she and/or Mr. Martin would proceed as Plaintiff's counsel. (Doc. 16.) On September 22, 2008, Ms. Hook filed a motion to withdraw as attorney, which was granted by the Court on October 21, 2008. (Docs. 22, 32.)
Plaintiff filed a motion requesting appointment of counsel on October 24, 2008, which was denied on November 3, 2008. (Docs. 33, 34.) On December 11, 2008, Plaintiff, represented by new counsel Mr. Geringer, filed an ex parte application for extension of time to file an opposition to Defendant City's motion to dismiss. (Doc. 40.) On December 17, 2008, the Court denied Plaintiff's application for an extension of time and granted Defendant City's motion to dismiss with leave to amend. (Doc. 43.)
On January 11, 2009, Plaintiff, represented by Mr. Geringer, filed a second amended complaint alleging Constitutional violations. (Doc. 44.) Plaintiff's second amended complaint alleged that on December 20, 2005, Plaintiff was walking along a public sidewalk late at night when an MPD police cruiser drove past him, made a U-turn, and returned to Plaintiff's location. (Doc. 44, ¶ 9.) Allegedly, Officers Chavez and Sheklanian jumped out of the car and ran toward Plaintiff; one of the officers yelled, "Stop, I am going to search you for weapons." (Doc. 44, ¶ 10.) Plaintiff contends that he stopped immediately upon hearing the police officer's command, but that Officer Sheklanian grabbed Plaintiff's left hand and wrist and twisted them behind his back while Officer Chavez twisted Plaintiff's right hand and forced Plaintiff to the ground. (Doc. 44, ¶¶ 11-12.) Plaintiff was allegedly placed in a "choke hold" and was "tazed" and handcuffed. (Doc. 44, ¶ 12.) Plaintiff asserts that he followed all commands and did not consent to a search, assault, or touching of his body by the officers. (Doc. 44, ¶ 13.) As a result of these events, Plaintiff was arrested for violation of California Penal Code § 148(a)(1) (willfully resisting, delaying, or obstructing a peace officer when the officer was engaged in the performance of his duties). (Doc. 44, ¶ 14.)
Plaintiff's second amended complaint was brought under 42 U.S.C. § 1983 and alleged four causes of action for violations of the Fourth Amendment: the first cause of action alleged that Plaintiff was arrested without probable cause, the second cause of action alleged that Defendants used excessive force, the third cause of action alleged that MPD failed to properly train its officers, and the fourth cause of action alleged that MPD had a custom and policy of permitting officers to use excessive force. (Doc. 44, ¶¶ 15-18.)
Defendants filed an answer to the second amended complaint on February 2, 2009. (Doc. 46.) A scheduling conference was held on April 2, 2009, during which Mr. Geringer, on behalf of Plaintiff, and counsel for Defendants were present. (Doc. 50.) A settlement conference was held on November 24, 2009, at which Mr. Geringer and Defendants' counsel were present; the case did not settle. (Doc. 52.)
On March 5, 2010, Defendants filed a motion for summary judgment. (Doc. 53.) Plaintiff, represented by Mr. Geringer, did not file an opposition. On April 16, 2010, the Court granted Defendants' motion as to the first, third, and fourth causes of action and permitted Defendants to file an additional motion for summary judgment as to the second cause of action so as to address deficiencies in their argument. (Doc. 56, 14:8-22.) The Court's order stated that the factual background concerning the decision was taken from Defendants' Undisputed Material Facts ("DUMF") and noted that Plaintiff "filed no response, objection, or contrary evidence" and "filed no opposition or response of any kind." (Doc. 56, 1:21-22, fn. 2.)
On April 26, 2010, Defendants filed a motion for summary judgment as to Plaintiff's second cause of action. (Doc. 57.) Plaintiff, represented by Mr. Geringer, failed to file an opposition. On May 20, 2011, the Court granted Defendants' motion for summary judgment, noting again that the factual background was based on the DUMFs and that Plaintiff did not file an opposition or response "of any kind." (Doc. 59, 1:26, 2:fn 2.) Judgment was entered in favor of Defendants, and the case was closed. (Docs. 59, 60.)
On April 15, 2011, Plaintiff, on his own behalf, filed the instant motion for reconsideration and a proposed order for substitution of attorney so as to substitute himself as attorney of record and place himself in propria persona. (Docs. 63, 65.) As noted above, the Court granted the substitution of counsel on July 27, 2011. (Doc. 72.). The Court now considers the motion for reconsideration.
Plaintiff seeks to set aside the Court's two summary judgment orders pursuant to Federal Rule of Civil Procedure 60(b)(1)-(6) on grounds that he was not aware that the motions had been filed and, as such, failed to oppose the motions due to his lack of knowledge. Plaintiff asserts that, as a result of his failing to file an opposition, the motions were granted and judgment was entered in favor of Defendants.
Fed. R. Civ. P. 60(b) provides:
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 ...