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Andrew R. Lopez v. Matthew Cate

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


December 12, 2011

ANDREW R. LOPEZ, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

On September 29, 2011, this action was dismissed. (ECF No. 17.) On October 31, 2011, plaintiff filed a notice of appeal, which was processed to the Court of Appeals for the Ninth Circuit on November 1, 2011. On November 2, 2011, plaintiff filed a notice claiming that the filing of his appeal had been obstructed and seeking an extension of time in which to file his notice of appeal. However, on November 15, 2011, the Ninth Circuit filed an order stating that plaintiff's "appeal is so insubstantial as to not warrant further review, it shall not be permitted to proceed." (ECF No. 24 at 1.) Because plaintiff's appeal was properly processed, the November 2, 2011 request for extension of time is denied.

Prior to the resolution of the appeal, on October 18, 2011, plaintiff filed a request that the case be reopened and counsel be appointed. Plaintiff also provided a copy of objections to the July 18, 2011 findings and recommendations, with an appended proof of service attesting to plaintiff handing the original objections to prison officials for mailing on August 11, 2011. Plaintiff argues that the objections were timely-filed under the mailbox rule. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (holding that "the Houston mailbox rule applies to § 1983 complaints filed by pro se prisoners").

The court construes plaintiff's motion as a motion for relief from judgment 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).

Because it appears plaintiff was unable to timely file his objections to the findings and recommendations, the court reviews his objections*fn1 in connection with the instant motion.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis. Accordingly, the court declines to reopen this action.

In light of this order, plaintiff's motion for appointment of counsel is denied. Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's November 2, 2011 request for extension of time (ECF No. 23) is denied;

2. Plaintiff's October 18, 2011 motion to reopen the case (ECF No. 20) is denied; and

3. Plaintiff's October 18, 2011 motion for appointment of counsel (ECF No. 20) is denied.


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