United States District Court, E.D. California
GORDON C. REID, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S
MOTION FOR ENTRY OF FINAL JUDGMENT (ECF NO. 59) FOURTEEN (14)
DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in a civil rights action pursuant to 42 U.S.C. § 1983.
The action proceeds on Plaintiff's first amended
complaint against Defendant Ontiveroz for retaliation against
Plaintiff for exercising First Amendment rights. (ECF No.
45.) Plaintiff's claims against Defendants United States
of America, Company X, the Federal Bureau of Prisons,
Copenhaver, Parent, Garcia, Fenton, Cisneros, Oliverez, John
Does 1-2, and Jane Doe, as well as additional claims against
Ontiveroz, were dismissed for failure to state a claim.
the Court is Plaintiff's motion for entry of a final
judgment as to the dismissed claims and defendants pursuant
to Federal Rule of Civil Procedure 54(b). (ECF No. 59.)
has engaged in prolonged efforts to challenge the Court's
original complaint was screened and dismissed with leave to
amend for failure to state a claim. (ECF No. 13.) After
requesting extensions of time, Plaintiff eventually filed
objections to the screening order (ECF No. 16) which were
construed as a motion for reconsideration and denied by the
District Judge. (ECF No. 25.) He also filed an interlocutory
appeal (ECF No. 20) which was dismissed for lack of
jurisdiction. (ECF No. 23.)
then filed a first amended complaint (ECF No. 28) which was
screened and found to state a cognizable First Amendment
claim against Defendant Ontiveroz in his individual capacity,
but no other claims. (ECF No. 31.) Plaintiff was given the
option to either file an amended complaint or to proceed only
on the claim found to be cognizable. (Id.)
two extensions of time(ECF Nos. 33, 36) Plaintiff filed
another motion for reconsideration and requested that the
matter be certified for interlocutory appeal. (ECF No. 38.)
This motion for reconsideration and request for certification
were denied. (ECF No. 42.) Plaintiff again was ordered to
either file an amended complaint or notify the Court of his
willingness to proceed only on the cognizable claim.
did not respond and on September 26, 2017 this Court ordered
to Plaintiff to show cause why his action should not be
dismissed for failure to obey a court order and failure to
prosecute. (ECF No. 43.) Plaintiff responded (ECF No. 44.)
The District Judge construed Plaintiff's response as an
election to stand on his complaint, and he dismissed the
claims found non-cognizable. (ECF No. 45.) The matter then
proceeded with service upon Defendant Ontiveroz. (ECF No.
Motion for Entry of Final Judgment
seeks a final judgment as to the dismissed defendants in
order to immediately appeal the screening order pursuant to
Federal Rule of Civil Procedure 54(b). (ECF No. 59.)
an appellate court will not review a district court's
ruling until after entry of a final judgment. See Coopers
& Lybrand v. Livesay, 437 U.S. 463, 478 (1978).
Where, as here, a decision or order “adjudicates fewer
than all the claims or the rights and liabilities of fewer
than all the parties, [it] does not end the action as to any
of the claims or parties” and does not constitute a
final judgment. See Fed.R.Civ.P. 54(b). However,
Rule 54(b) allows a court to “direct entry of a final
judgment as to one or more, but fewer than all, claims or
parties . . . if the court expressly determines that there is
no just reason for delay.” Thus, a Rule 54(b) judgment
may be immediately appealed. James v. Price Stern Sloan,
Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002).
is left to the sound judicial discretion of the district
court to determine the ‘appropriate time' when each
final decision in a multiple claims action is ready for
appeal.” Curtis-Wright Corp. v. Gen. Elec.
Co., 446 U.S. 1, 8 (1980). Partial judgment under Rule
54(b) “must be reserved for the unusual case in which
the costs and risks of multiplying the number of proceedings
and of overcrowding the appellate docket are outbalanced by
pressing needs of the litigants for an early and separate
judgment as to some claims or parties.”
Morrison-Knudsen Co., Inc. v. Archer, 655 F.2d 962,
965 (9th Cir. 1981). “A similarity of legal or factual
issues [still pending before the trial court] will weigh
heavily against entry of judgment under the rule, and in such
cases a Rule 54(b) order will be proper only where necessary
to avoid a harsh and unjust result, documented by further and
specific findings.” Frank Briscoe Co., Inc. v.
Morrison- Knudsen Co., Inc., 776 F.2d 1414, 1416 (9th
final judgment as to the dismissed defendants is not
appropriate. This is not an “unusual case.”
Morrison-Knudsen Co., Inc., 655 F.2d at 965. Indeed,
the Court is faced with similar claims almost daily.
Moreover, the Court does not find that there are any pressing
needs that require an early and separate judgment as to the
dismissed defendants. Finally, multiplying the number of
proceedings in this case will not ensure efficient use of
court resources. To the contrary, Plaintiff has already filed
two motions for reconsideration (ECF Nos. 16, 38) and an
interlocutory appeal of the Court's screening orders,
(ECF Nos. 25, 42.) This has resulted in a delay in serving
Defendant Ontiveroz. ...