The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION, (2) SETTING ASIDE DISMISSAL ORDER AND JUDGMENT, AND (3) DIRECTING CLERK TO RE-OPEN CASE (Doc. 119) ORDER (1) REVOKING IN FORMA PAUPERIS STATUS, (2) VACATING ORDER DIRECTING CDCR TO COLLECT FILING FEE FROM PLAINTIFF'S TRUST ACCOUNT, (3) REQUIRING PLAINTIFF TO PAY FILING FEE BALANCE WITHIN TWENTY DAYS, (4) DIRECTING SERVICE OF ORDER ON CDCR AND FRESNO FINANCIAL DEPARTMENT, AND (5) DENYING MOTION FOR RELIEF FROM FILING FEE COLLECTION AS MOOT (Docs. 8, 9, and 120)
I. Motion for Reconsideration
Plaintiff Michael Contreraz, #C-45857, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 14, 2006.*fn1 This action was proceeding on Plaintiff's amended complaint, filed on February 3, 2009, against Defendants Stockbridge-Cota,*fn2 Rodriguez, Franco, Davis, and Carlos for violation of the Eighth Amendment of the United States Constitution.
On February 19, 2013, the Court dismissed this action, with prejudice, for failure to prosecute and entered judgment. Plaintiff filed a motion for reconsideration on March 15, 2013. Defendants did not file a response. Local Rule 230(l).
Federal Rule of Civil Procedure 60(b)(1) allows the Court to relieve a party from an order or a judgment based on "mistake, inadvertence, surprise, or excusable neglect" and Rule 60(b)(6) allows the Court to relieve a party from an order "for any other reason that justifies relief." Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion."
On December 11, 2012, Defendants filed a motion pursuant to 28 U.S.C. § 1915(g) seeking an order revoking Plaintiff's in forma pauperis status and dismissing the action. Plaintiff did not file an opposition or a statement of non-opposition to the motion and on January 16, 2013, the Court ordered Plaintiff to file a response to the motion within twenty-one days. Once again, Plaintiff did not file a response and the case was dismissed on February 19, 2013, for failure to prosecute. Plaintiff now seeks to set aside the dismissal on the ground that he has been unable to access his legal property or other legal material since November 15, 2012.
Plaintiff, who is currently incarcerated at Salinas Valley State Prison (SVSP), attests under penalty of perjury that he has been undergoing mental health treatment at SVSP under the care of the Department of Mental Health (DMH) since November 15, 2012, and that he expects to be under DMH care for one to two years. Plaintiff attests that DMH does not provide legal supplies or services to patients, and he has not had access to his legal property. Plaintiff attests that he finally received five sheets of paper on March 8, 2013, which he used to file the motion for reconsideration. Plaintiff represents that the circumstances beyond his control have prevented him from responding between November 15, 2012, and the date of his motion for reconsideration.
As an initial matter, the Court takes judicial notice of the following cases filed by Plaintiff and dismissed by the undersigned: 1:11-cv-01607-LJO-DLB Contreras v. Sharon, dismissed on December 11, 2012; 1:11-cv-01523-DLB-LJO Contreras v. Ibarra, dismissed on December 28, 2012; and 1:04-cv-06039-LJO-GSA Contreraz v. Adams and 1:11-cv-01222-LJO-GSA Contreraz v. Director of CDCR, dismissed on January 7, 2013. Plaintiff filed motions for reconsideration in each of the four cases, two of which were denied on March 19, 2013, one of which was denied on March 21, 2013, and one of which was denied on March 22, 2013.
The motion for reconsideration filed in this case is identical to the motions for reconsideration filed in Plaintiff's four recently closed cases. The procedural posture of this case, however, differs from the procedural postures of those cases and that difference compels a different result.
Plaintiff's other four cases were dismissed based on Plaintiff's failure to pay the filing fee as ordered. As the Court stated in its orders denying Plaintiff's motions for reconsideration, Plaintiff's alleged inability to access his legal material or the law library did not affect his ability to pay the filing fee and he made no showing to the contrary. Plaintiff's purported inability to access legal supplies and his legal property between November 15, 2012, and March 8, 2013, affected his ability to respond to Defendants' motion and Court's order in this case, however.
There is no support in the record for a finding that Defendants will suffer prejudice if the dismissal is set aside, Plaintiff brought his motion within one month of dismissal and the length of the delay is therefore negligible, Plaintiff's failure to oppose the motion to dismiss and respond to the order were due to factors which appear to have been outside his control, and it appears that Plaintiff has acted in good faith. Lemoge v. U.S., 587 F.3d 1188, 1192-98 (9th Cir. 2009) (discussing relief under Rule 60(b)(1)). Furthermore, Plaintiff has demonstrated "injury and circumstances beyond his control." Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (discussing relief under Rule 60(b)(6)). Accordingly, the Court finds that Plaintiff is entitled to relief under Rule 60(b)(1) and Rule 60(b)(6), and Plaintiff's motion to set aside the order and judgment dismissing this ...