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Kareem Brown v. J. Kavanaugh

April 25, 2013

KAREEM BROWN,
PLAINTIFF,
v.
J. KAVANAUGH, ET AL.,
DEFENDANTS.



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

ORDER DENYING PLAINTIFF'S MOTION REQUESTING THE REOPENING OF JUDGMENT (ECF No. 74)

Plaintiff Kareem Brown ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint against Defendant Garcia for reporting that Plaintiff forced open the housing unit door on August 26, 2008, as retaliation in violation of the First Amendment; and against Defendant Kavanaugh for suspending Plaintiff from the Men's Advisory Council ("MAC") on August 26, 2008, as retaliation in violation of the First Amendment. The matter is set for jury trial on May 2, 2013.

Currently pending is Plaintiff's motion requesting the reopening of judgment pursuant to Federal Rule of Civil Procedure 60(b)(1), which was filed on April 4, 2013. (ECF No. 74.) Defendants Garcia and Kavanaugh filed an opposition to the motion on April 11, 2013. (ECF No. 80.) For the reasons set forth more fully below, Plaintiff's motion requesting the reopening of judgment is DENIED.

I.Procedural Background

Following remand by the Ninth Circuit Court of Appeals, this action proceeded on Plaintiff's 3 complaint, filed November 18, 2008, against Defendants Garcia and Kavanaugh for retaliation in 4 violation of the First Amendment. 5

Defendants filed a motion for summary judgment on March 15, 2012, and Plaintiff opposed the 6 motion. After briefing was concluded, the magistrate judge issued findings and recommendations, 7 which recommended that Defendants' motion for summary judgment be granted in part and denied in 8 part. Specifically, the magistrate judge recommended as follows: 9

1. Defendant Garcia's motion for summary judgment for reporting that Plaintiff forced open the housing unit door on August 26, 2008, be DENIED;

2. Defendant Garcia's motion for summary judgment for refusing Plaintiff access to the housing unit on October 14, 2008, be GRANTED;

3. Defendant Kavanaugh's motion for summary judgment for suspending Plaintiff from the MAC on August 26, 2008, be DENIED;

4. Defendant Kavanaugh's motion for summary judgment for disposing of Plaintiff's burrito on November 9, 2008, be GRANTED;

5. Defendant Kavanaugh's motion for summary judgment for suspending Plaintiff from the MAC on November 9, 2008, be GRANTED; and

6. Defendants Kavanaugh and Garcia's motion for summary judgment on the grounds of qualified immunity be denied.

(ECF No. 50, p. 24.) On October 24, 2012, Plaintiff filed objections to the magistrate judge's findings and recommendations. (ECF No. 51.) On October 26, 2012, following consideration of Plaintiff's objections, the undersigned adopted the magistrate judge's findings and recommendations in full, and the action proceeded against Defendant Garcia for retaliation by reporting that Plaintiff forced open the housing unit door and Defendant Kavanaugh for retaliation by suspending Plaintiff from the Men's Advisory Council on August 26, 2008, in violation of the First Amendment. (ECF No. 52.)

On October 30, 2012, the Court issued a Second Scheduling Order, which set the date for a Telephonic Trial Confirmation Hearing on March 14, 2013, and the date for a ...


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