United States District Court, S.D. California
ORDER: (1) GRANTING PETITIONER'S MOTION FOR
RELIEF FROM JUDGMENT (ECF No. 25); (2) TERMINATING AS MOOT
PETITIONER'S MOTION FOR A CERTIFICATE OF APPEALABILITY
(ECF No. 27); AND (3) DENYING PETITIONER'S LETTER REQUEST
(ECF No. 31)
Cynthia Bashant United States District Judge
before the Court is Petitioner Carlos Rios's motion for
relief from judgment pursuant to Federal Rule of Civil
Procedure 60. (ECF No. 25.) For the following reasons, the
Court GRANTS Petitioner's request.
February 8, 2016, U.S. Magistrate Judge Ruben B. Brooks
issued a Report and Recommendation ("R&R")
recommending that this Court issue an order granting
Respondent's motion to dismiss. (ECF No. 21.) No
objections were filed to the R&R. On March 29, 2016, the
Court approved and adopted the R&R in its entirety and
granted Respondent's motion to dismiss. (ECF No. 22.)
Accordingly, the Clerk of the Court entered judgment against
Petitioner. (ECF No. 23.)
thereafter, Petitioner filed a motion for relief from
judgment. (ECF No. 25.) Petitioner argues relief from
judgment is appropriate because he did not receive and was
not aware of the R&R prior to it being approved and adopted
by this Court. (ECF No. 25 at 2:6-8.) To support this
statement, Petitioner submits copies of several grievances
that he has filed with the California Department of
Corrections and Rehabilitation concerning alleged
interference with the delivery of his legal mail.
(Id. at Exs. A & B.) He also notes that he has been
litigating a separate action under 42 U.S.C. § 1983
against Respondent and various employees of the Richard J.
Donovan Correctional Facility in which he claims the
defendants have interfered with the delivery of his legal
mail. (Id. at 2:25-3:2; see also Rios v.
Paramo, No. 13-cv-02455-WQH-JMA (S.D. Cal. filed Oct.
10, 2013)). Petitioner also submits a declaration in which he
declares under penalty of perjury that he did not receive the
R&R. (ECF No. 25 at 7-8.)
Rule of Civil Procedure 60(b)(6) allows a court to relieve a
party from a final judgment or order for any reason that
justifies relief. "A party moving for relief under Rule
60(b)(6) ‘must demonstrate both injury and
circumstances beyond his control that prevented him from
proceeding with the action in a proper fashion.'"
Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)
(quoting Latshaw v. Trainer Wortham & Co., Inc., 452
F.3d 1097, 1103 (9th Cir. 2006)). The Ninth Circuit has
cautioned that Rule 60(b)(6) is to be "used sparingly as
an equitable remedy to prevent manifest injustice and is to
be utilized only where extraordinary circumstances prevented
a party from taking timely action to prevent or correct an
erroneous judgment." Id. (quoting
Latshaw, 452 F.3d at 1103).
the Court finds that Petitioner has demonstrated relief from
judgment is appropriate. Petitioner states under penalty of
perjury that he did not receive the R&R prior to the Court
adopting it. He also demonstrates that he has previously
raised concerns over potential interference with the delivery
of his legal mail. The Court does note, however, that
Petitioner is receiving at least some of his legal mail,
which is demonstrated by the fact that he is aware of the
Court's Order adopting the R&R. Nevertheless, in an
abundance of caution, the Court will vacate the judgment and
its Order adopting the R&R to allow Petitioner the
opportunity to object to the R&R. See, e.g.,
Smith v. Adams, No. 109-CV-00292-GSA PC, 2009 WL
3789054, at *1 (E.D. Cal. Nov. 10, 2009) (setting aside
judgment based on the plaintiff prisoner's claim that
prison staff interfered with the delivery of his mail).
Accordingly, as ordered below, Petitioner must file any
objections to the R&R no later than July 22, 2016.
light of the foregoing, it is HEREBY ORDERED that:
Clerk of the Court shall mail another copy of the Report and
Recommendation (ECF No. 21) to Petitioner.
Petitioner's motion for relief from judgment (ECF No. 25)
Clerk's judgment (ECF No. 23) is VACATED, and the Clerk
shall reopen this case.
Court's Order adopting the Report and Recommendation (ECF
No. 22) is VACATED.
Petitioner may file written objections to the Report and
Recommendation with the Court and serve a copy on all parties
on or before July 22, 2016. The document should be
captioned "Objections to Report and
Recommendation." Any reply to the objections shall be
filed and served on or before July 29, 2016.
Petitioner is advised that a failure to file objections
within the specified time may waive the right to raise those
objections on appeal of the Court's order. See Turner
v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998);
Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.
Petitioner's motion for a certificate of appealability
(ECF No. 27) is TERMINATED as moot because the Court has set
aside the judgment for which Petitioner seeks a certificate
to appeal from.
Petitioner's letter request for a copy of the docket (ECF
No. 31) to determine whether his motions have been resolved
is DENIED in light of the fact ...