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Floyd Scott v. J. Palmer

February 21, 2013

FLOYD SCOTT,
PLAINTIFF,
v.
J. PALMER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER GRANTING MOTION FOR RECONSIDERATION AND REQUIRING DEFENDANTS TO FILE AN OPPOSITION OR A STATEMENT OF NON-OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATION WITHIN FIFTEEN DAYS (Doc. 109)

I. Procedural History

Plaintiff Floyd Scott, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 29, 2009. This action is currently proceeding against Defendants Palmer, Rivera, and Lopez on Plaintiff's claim that while he was at Kern Valley State Prison in Delano, California, Defendant Palmer used excessive physical force against him and Defendants Rivera and Lopez failed to intervene, in violation of his rights under the Eighth Amendment of the United States Constitution. Pending before the Court is Defendants' motion for reconsideration, filed on January 11, 2013. Fed. R. Civ. P. 60(b). Plaintiff filed an opposition on February 8, 2013, Defendants filed a reply on February 15, 2013, and the motion has been submitted upon the record. Local Rule 230(l).

On March 19, 2012, the Court granted in part and denied in part Defendants' motion for summary judgment. In relevant part, the Court found that Plaintiff's excessive force claim arising out of the use of pepper spray was barred by the favorable termination rule because Plaintiff lost time credits as a result of being found guilty of battery on a peace officer. Wilkinson v. Dotson, 544 U.S. 74, 81-2, 125 S.Ct. 1242 (2005).

On April 30, 2012, Plaintiff filed a motion for reconsideration supported by evidence that on March 6, 2012, the credit forfeiture had been set aside, removing the bar to his claim. On May 23, 2012, the Court granted Defendants' motion for a sixty-day extension of time to oppose the motion for reconsideration, but Defendants did not file an opposition. Instead, on June 22, 2012, they filed a motion seeking an order declaring Plaintiff a vexatious litigant and requiring him to furnish security, and seeking a prefiling order against Plaintiff.

On November 19, 2012, the Court granted Plaintiff's unopposed motion for reconsideration, found that Plaintiff's claim was no longer barred by the favorable termination rule, and set aside its order dismissing Plaintiff's excessive force claim arising out of the use of pepper spray. On December 21, 2012, the Court denied Defendants' vexatious litigant motion.

Defendants now seek reconsideration of the order granting Plaintiff's motion for reconsideration on the ground that it was issued prematurely. Defendants argue that the action was stayed in its entirety during the pendency of their vexatious litigant motion. Defendants seek to have the order set aside or reissued now that the stay has been lifted.

Plaintiff opposes the motion on the ground that Defendants were granted sixty days within which to file their opposition but they failed to do so, and the Court already ruled on his motion for reconsideration. Plaintiff also contends that Defendants' motion is frivolous and harassing, and the Court's ruling caused no prejudice to Defendants.

In reply, Defendants deny Plaintiff's accusations and contend that he failed to address the merits of their motion with respect to the existence of a stay pending resolution of their vexatious litigant motion.

II. Discussion

Federal Rule of Civil Procedure 60(b)(1) allows the Court to correct an order based on clerical mistakes, oversights, and omissions, and 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. If the moving party is able to show an error in the application of the law, Rule 60(b) permits the Court to correct the error. E.g., In re Syncor ERISA Litigation, 516 F.3d 1095, 1099-1100 (9th Cir. 2008); In re Int'l Fibercom, Inc., 503 F.3d 933, 940- 41 (9th Cir. 2007); Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999); Liberty Mutual Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982).

In this case, the issue is whether the action was stayed during the pendency of Defendants' vexatious litigant motion. The relevant Local Rule and California Code of Civil Procedure Sections provide as follows:

On its own motion or on motion of a party, the Court may at any time order a party to give a security, bond, or undertaking in such amount as the Court may determine to be appropriate. The provisions of Title 3A, part 2, of the California Code of Civil Procedure, relating to vexatious litigants, are hereby adopted as a procedural Rule of this Court on the basis of which the Court may order the giving of a security, bond, or undertaking, although the power of the Court shall not be limited thereby. Local Rule 151(b).

In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security or for an order dismissing the litigation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable ...


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