United States District Court, S.D. California
WILLIAM Q. HAYES United States District Judge.
matter before the Court is Plaintiffs Motion to Set Aside
Prior Judgment pursuant to Federal Rule of Procedure
60(b)(6). (ECF No. 24).
February 4, 2011, Plaintiff, a state inmate currently
incarcerated at Iron wood State Prison located in Blythe,
California, and proceeding pro se, filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). In
his Complaint, Plaintiff alleged that he was denied access to
the courts when he was housed at Calipatria State Prison in
2009. Plaintiff also filed a Motion to Proceed In Forma
Pauperis ("IFP") pursuant to 28 U.S.C. §
1915(a). (ECF No. 2).
March 30, 2011, the Court granted Plaintiffs Motion to
Proceed IFP and dismissed his Complaint for failing to state
a claim upon which relief could be granted. (ECF No. 3 at
4-5). The Court granted Plaintiff leave to file an Amended
Complaint in order to correct the deficiencies of pleading
identified by the Court. Id. Plaintiff was also
cautioned that any Defendants not named and claims not
re-alleged in the Amended Complaint would be deemed to have
been waived. Id. (citing King v. Atiyeh,
814 F.2d 565, 567 (9th Cir. 1987).
April 21, 2011, Plaintiff filed his First Amended Complaint
("FAC"). (ECF No. 4). On July 25, 2011, the Court
dismissed Plaintiffs FAC for failing to state for failing to
state a claim upon which relief could be granted but
permitted Plaintiff leave to file a Second Amended Complaint
("SAC"). (ECF No. 7 at 5).
failed to submit a Second Amended Complaint within the time
frame set forth in the Court's Order but the Court
permitted Plaintiff to file a Second Amended Complaint
("SAC"), which was filed on September 7, 2012, (ECF
No. 9). On February 19, 2013, the Court, once again,
conducted the required sua sponte screening and found that
Plaintiffs Second Amended Complaint failed to state a claim
upon which relief could be granted and was frivolous. (ECF
No. 10 at 6-7). Plaintiff was granted leave to file an
Amended Complaint to correct the deficiencies of pleading
identified by the Court. Plaintiff was informed by the Court
that he must comply with both the Federal Rules of Civil
Procedure Rule 8 and Local Rule 8.2, which provides that
prisoners must use the Court's form complaint and any
additional pages are "not to exceed fifteen (15) in
number." Id. at 3.
April 19, 2013, Plaintiff filed his Third Amended Complaint
("TAG"), which ' failed to comply with the
Court's previous Order, Rule 8, or Local Rule 8.2. (ECF
No.12). In addition, Plaintiff filed a "Motion to
Disqualify Magistrate Judge." (ECF No. 14). On August
13, 2013, the Court denied Plaintiffs "Motion to
Disqualify Magistrate Judge" and dismissed Plaintiff s
TAC. The Court ordered:
Plaintiff s Third Amended Complaint is DISMISSED with
prejudice for failing to state a claim upon which relief may
be granted and as frivolous, for failing to comply with Rule
8 and failing to comply with a Court Order. See 28
U.S.C. § 1915(e)(2) & § 1915A(b); Fed.R.Civ.P.
8. In addition, the Court finds further amendment would be
futile. See Cahill V. Liberty Mut. Ins. Co., 80 F.3d
336, 339 (9th Cir. 1996) (denial of a leave to amend is not
an abuse of discretion where further amendment would be
futile); see also Robinson v. California Bd. of Prison
Terms, 997; F.Supp. 1303, 1308 (CD. Cal. 1998)
("Since plaintiff has not, and cannot, state a claim
containing an arguable basis in law, this action should be
dismissed without leave to amend; any amendment would be
futile.") (citing Newland v. Dalton, 81 F.3d
904, 907 (9th Cir. 1996)).
Id. at 6. On August 13, 2013, the Clerk of Court
issued a Judgment in the case. (ECF No. 16).
September 20, 2013, Plaintiff filed a notice of appeal to the
Ninth Circuit Court of Appeals. (ECF No. 17). On December 19,
2013, the Court of Appeals issued an order dismissing the
appeal for lack of jurisdiction because the appeal untimely.
(ECF No. 21). On January 13, 2014, the Court of Appeals
issued its mandate. (ECF No. 22).
April 27, 2016, Plaintiff filed a Motion to Set Aside Prior
Judgment pursuant to Federal Rule of Procedure 60(b)(6). (ECF
No. 24). Plaintiff requests that the Court reconsider its
prior order "which was issued in clear error, and was
manifestly unjust, and deprived Plaintiff of his Due Process
Rights, and, . . amounted to a gross miscarriage of justice .
. . ." Id. at 1. Plaintiff contends that the
"Court's orders 'identifying deficiencies' .
. . [were] vague, ambiguous, and over breadth in it's sua
sponte screening process in which the Court committed clear
error, by failing to be more clear about what it ordered the
Plaintiff to do. Id. at 3. Plaintiff contends that
"[t]he fact. .. that the Court [only] allowed three
amendments proves that the Court comprehended that the
deficiencies were curable. And only dismissed the case with
prejudice, after Plaintiff moved to disqualify the Judge, as
being bias[ed] against petitioner . . . ." Id.
at 4. Plaintiff requests that the Court "reopen"
his case in "the interest of justice." Id.
60(b)(6) . . . permits reopening when the movant shows
'any ... reason justifying relief from the operation of
the judgment' other than the more specific circumstances
set out in Rules 60(b)(1)-(5)." Gonzalez v.
Crosby,545 U.S. 524, 528-29 (2005). Rule 60(c) requires
that a Rule 60(b) motion be made "within a reasonable
time." Fed.R.Civ.P. 60(c). "What constitutes
'reasonable time' depends upon the facts of each
case, taking into consideration the interest in finality, the
reason for delay, the practical ability of the litigant to
learn earlier of the grounds relied upon, and prejudice to
the other parties." Lemoge v. United States,587F.3d 1188, 1196(9th Cir. 2009) (ciimg Ashford v.
Steuart,657 F.2d 1053, 1055 (9th Cir. 1981) (per
curiam)). Relief under 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." Harvest
v. Castro,531 F.3d 737, 749 (9th Cir. 2008) (internal
quotation marks omitted). "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."
Id. (internal quotation marks omitted). "A
motion for reconsideration should not be ...