United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S RULE 60 MOTION; DENYING
PLAINTIFF'S MOTION FOR RETURN OF FUNDS (DOC. NOS. 247,
Bealer (“plaintiff) is a state prisoner who appeared
pro se and was granted in forma pauperis status in
this civil rights action which he filed pursuant to 42 U.S.C.
§ 1983. The undersigned presided over the trial in this
action, which proceeded to jury trial on plaintiffs Fourth
Amended Complaint wherein he alleged that the defendants had
subjected him to the excessive use of force in violation of
his rights under the Eighth Amendment. (Doc. No. 21.) On
August 11, 2016, the jury returned a unanimous verdict in
favor of defendants, finding that defendants R. Brannum and
S. Rios did not use excessive force against plaintiff on
November 1, 2010. (Doc. No. 206.) At the time of the trial,
defendants R. Brannum and S. Rios were the only remaining
defendants in the case, and plaintiffs excessive use of force
claim was the only remaining claim. (Doc. No. 33.)
February 2, 2017, the court issued an order denying
plaintiff's post-trial motions: (i) for an extension of
time to submit a motion for a new trial and a notice of
appeal, (Doc. Nos. 214-15); (ii) for a new trial, (Doc. Nos.
218, 235); (iii) to proceed in forma pauperis on
appeal and for a new trial, (Doc. No. 230); (iv) for
reconsideration of the court's October 17, 2016 order
denying his motion for preparation of a trial transcript at
government expense, (Doc. No. 231); (v) for authorization of
post-trial juror interviews, (Doc. No. 234); (vi) for the
undersigned to appear as a witness, (Doc. No. 234); and (vii)
for videotape evidence in support of his motion for a new
trial, (Doc. No. 237). (Doc. No. 238.) On March 7, 2017, the
court issued an amended order denying many of those same
motions. (Doc. No. 243.)
April 24, 2017, plaintiff filed a Rule 60 motion for
reconsideration of the court's order denying his motion
for a new trial. (Doc. No. 247.) On June 5, 2017, plaintiff
filed a motion for the return of funds removed from his trust
account by the court. (Doc. No. 250.) For the following
reasons, the court will grant plaintiff's motion for
reconsideration in part and upon reconsideration confirms its
order denying his motion for a new trial solely on its merits
and deny plaintiff's motion for a return of funds.
Rule 60 Motion For Reconsideration
moves for reconsideration of the court's order denying
his motion for a new trial.
Civil Procedure Rule 60(b) provides that “[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; . . . or (6) any other reason
justifying relief from the operation of the judgment.
“The law in this circuit is that errors of law are
cognizable under Rule 60(b).” Liberty Mut. Ins. Co.
v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982).
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 Rule 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 in moving for reconsideration of an
order denying or granting a prior motion, a party must 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 considered.
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district 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
plaintiff moves for reconsideration of the court's order
denying his motion for a new trial. Motions for a new trial
are governed by Federal Civil Procedure Rule 59, which
provides that any such motions “must be filed no later
than 28 days after the entry of judgment.” Fed.R.Civ.P.
59. Motions to alter or amend a judgment brought under Rule
59(e) must also be “filed no later than 28 days after
the entry of judgment.” Id. Under the
“mailbox rule, ” motions filed by pro se
prisoners are considered filed on the date they are delivered
to prison authorities for forwarding to the district court.
See Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir.
2009) (citing Houston v. Lack, 487 U.S. 266, 270-72
(1988)); see also Hostler v. Groves, 912 F.2d 1158,
1160-61 (9th Cir. 1990); Jackson v. City of
Pittsburgh, No. 07-111, 2010 WL 4878795, at *1 (W.D.
Penn. Nov. 24, 2010) (applying the mailbox rule to a motion
for a new trial under Rule 59).
noted, on March 7, 2017, this court issued its order denying
plaintiffs motion for a new trial on two grounds. (Doc. No.
243.) First, the court concluded that the motion was
untimely. (Doc. No. 243 at 3.) Specifically, the court noted
that judgment was entered in favor of defendants in this case
on August 12, 2016, and that although the twenty eight day
period for filing a motion for a new trial lapsed on
September 9, 2016, plaintiff's motion for a new trial was
not filed with the court until September 15, 2016.
(Id.) Second, the court also concluded that on its
merits, plaintiff's motion did not present any valid and
supported grounds for the granting of a new trial.
(Id. at 3-4 n.3.)
moves for reconsideration of this order, arguing that the
court erred in denying his motion for a new trial as
untimely. (Doc. No. 218.) In particular, plaintiff contends
that his motion for a new trial was timely under the
“mailbox rule” because it was submitted to prison
authorities for filing on September 8, 2016, within the
twenty-eight day deadline. (Doc. No. 249.)
was entered in this action in favor of defendants on August
12, 2016, and the twenty-eight-day period for filing a motion
for a new trial lapsed on September 9, 2016. (Doc. No. 209.)
While the court did not receive plaintiff's motion for
filing until September 15, 2016 (Doc. No. 218), plaintiff has
pointed to evidence suggesting that he delivered his motion
for a new trial to prison authorities for filing on September
8, 2016. As plaintiff notes, his original motion for a new
trial is Dated: the signature line as having been signed on
September 8, 2016. (Doc. No. 218.) Plaintiff has also
submitted a declaration stating that he submitted the motion
for a new trial to prison authorities on September 8, 2016.
(Doc. No. 249 at 1.) Therefore, upon reconsideration, the
court now concludes that plaintiff's motion for a new
trial was timely filed under the mailbox rule. See Guzman
v. United States, No. 05-214-ML, 2007 WL 141073, at *2
n. 4 (D. R.I. Jan. 17, 2007) (“[U]nder the mailbox
rule, the motion will be considered filed as of the date it
was signed.” (citation omitted)); Blackmer v.
Warden, No. 03-275-PB, 2004 WL 2823216, at *1 n. 1 (D.
N.H. Dec. 9, 2004) (relying on “the date that appears
on the petition” to establish the filing date). But
see Parrila Sanes v. ...