United States District Court, E.D. California
ORDER GRANTING PLAINTIFF’S MOTION TO VACATE
JUDGMENT DUE TO CLERICAL ERROR (DOC. 29) THIRTY DAY
Lawrence J. O’Neill UNITED STATES CHIEF DISTRICT JUDGE
Isrrael Espinoza, is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983 on June 9, 2016.
(Doc. 1.) This action was closed on January 11, 2016 when
Defendant’s motion for summary judgment was granted.
(Docs. 27, 28.) In February 4, 2016, Plaintiff filed a motion
to vacate judgment. (Doc. 29.) Defendant filed an opposition
on February 16, 2016 (Doc. 30) to which Plaintiff did not
reply. The motion is deemed submitted. L.R. 230(l).
Because clerical error occurred, Plaintiff’s motion is
history that led up to dismissal of this action was less than
idea. On October 7, 2014, Defendant filed a motion to dismiss
which was converted to a motion for summary judgment since it
raised the issue of whether this action is barred under
Heck v. Humphrey, 512 U.S. 477, 487-88 (1994), which
can only be considered under Federal Rule of Civil Procedure
56. (Doc.18.) Plaintiff was given notice of the requirements
to oppose a motion for summary judgment and, while his
request to postpone/continue the motion for summary judgment
was denied, he was granted an extension of time to September
20, 2015 to file his opposition. (Doc. 21.)
opposition was received, a Findings and Recommendation
(“F&R”) to grant Defendant’s motion
issued on September 29, 2015. (Doc. 22.) However, later that
same day, Plaintiff’s opposition was filed which
reflected that Plaintiff gave it to prison staff for mailing
to this Court on September 9, 2015 and so was timely under
the prison mail-box rule. (Doc. 23, citing Houston v.
Lack, 487 U.S. 266, 270 (1988).) Thus, on November 10,
2015, an order issued withdrawing the September 29, 2015
F&R to grant Defendant’s motion and providing
Defendant seven days to file a reply to Plaintiff’s
opposition. (Doc. 24.) On November 18, 2015, a new F&R to
grant Defendant’s motion for summary judgment issued.
(Doc. 26.) No objections to it were received and, on January
11, 2016, an order adopting the F&R issued and judgment
was entered. (Docs. 27, 28.)
60(b) of the Federal Rules of Civil Procedure provides that
A[o]n motion and upon such terms as are just, the court may
relieve a party . . . 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 . . ., misrepresentation, or misconduct
by an opposing party; . . . or (6) any other reason
justifying relief from the operation of judgment.''
Motions under Rule 60(b) "must be made within a
reasonable time -- and for reasons (1), (2), and (3) no more
than a year after the entry of the judgment or order or the
date of the proceeding."
under Rule 60 “is to be used sparingly as an equitable
remedy to prevent manifest injustice and is to be utilized
only where extraordinary circumstances” exist.
Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)
(internal quotations marks and citation omitted) (addressing
reconsideration under Rules 60(b)(1)-(5)). The moving party
“must demonstrate both injury and circumstances beyond
his control . . . .” Id. (internal quotation
marks and citation omitted). 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" previously,
"what other grounds exist for the motion, ” and
“why the facts or circumstances were not shown" at
the time the substance of the order which is objected to was
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the [ ] court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law, ” and it “may not be
used to raise arguments or present evidence for the first
time when they could reasonably have been raised earlier in
the litigation.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (internal quotations marks and citations omitted)
(emphasis in original).
argues to vacate the judgment in this action arguing that his
opposition was not considered, asserting that after the
September 25, 2015 F&R was withdrawn, a new F&R never
issued. This is incorrect. The new F&R, which considered
Plaintiff’s opposition, issued on November 18, 2015.
However, the docket in this action does not reflect that the
November 18, 2015 F&R was served by mail on Plaintiff
and, from his motion, it is apparent that Plaintiff never
received it. This equates to injury through circumstances
beyond Plaintiff’s control. Harvest, 531 F.3d
at 749. Thus, it is proper to vacate the judgment which was
entered in this action to allow Plaintiff time to file
objections to the November 18, 2015 F&R.
accordance with the provisions of 28 U.S.C. Â§ 636(b)(1)(C)
and Local Rule 303, this Court has conducted a de
novo review of this case. Having carefully reviewed the
entire file, the Court finds that, due to clerical error,
Plaintiff was not served with a copy of the November 18, 2015
F&R to have opportunity to file objections.
it is HEREBY ORDERED that:
Plaintiff’s motion to vacate judgment, filed on