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Lipsey v. Reddy

United States District Court, E.D. California

July 12, 2019

CHRISTOPHER LIPSEY, JR., Plaintiff,
v.
DR. REDDY, et al., Defendants.

          ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(B) (ECF NOS. 83, 85)

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         I. Background

         Plaintiff Christopher Lipsey, Jr. filed the instant 42 U.S.C. § 1983 action on April 24, 2017. (ECF No. 1.) On March 6, 2019, the undersigned issued an order adopting the Magistrate Judge's Findings and Recommendations in full, granting Defendants Hernandez's, Celedon's, and Mancilla's motion for summary judgment for failure to exhaust administrative remedies, and entering judgment in favor of all Defendants. (ECF Nos. 74, 75.) On April 1, 2019, Plaintiff filed a notice of appeal of the Court's March 6, 2019 order. (ECF No. 80.)

         On June 7, 2019, Plaintiff filed a motion pursuant to Federal Rule of Civil Procedure 60(b) and request for civil penalties and/or exemplary damages. (ECF No. 83.) On June 13, 2019, the Court denied Plaintiff's Rule 60(b) motion on the ground that, since the motion was filed after the notice of appeal was filed and Plaintiff's motion did not ask the Court to issue an indicative ruling under Federal Rule of Civil Procedure 62.1, the Court had no jurisdiction to decide Plaintiff's Rule 60(b) motion. (ECF No. 84.)

         Currently before the Court is Plaintiff's “Question for Review, ” filed on July 8, 2019. (ECF No. 85.) In this document, Plaintiff states that, after reading Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2002), which the Court cited in its June 13, 2019 order denying Plaintiff's Rule 60(b) motion, he has now realized the proper procedure to seek Rule 60(b) relief during the pendency of an appeal. (Id. at 2.) Hence, Plaintiff states that he is now asking the Court to entertain or grant the Rule 60(b) motion that he filed on June 7, 2019. (Id.)

         II. Discussion

         A. The Court Will Construe Plaintiff's Motion as a Rule 60(b) Motion

         Federal Rule of Civil Procedure 62.1(a) provides that: “If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” “[P]rocedurally there is no basis for an independent, free-standing Rule 62.1 motion, asking the district court, in the abstract as it were, to advise the court of appeals what it would do if the court of appeals were to remand the case.” Medgraph, Inc. v. Medtronic, Inc., 310 F.R.D. 208, 210 (W.D.N.Y. 2015). Instead, Rule 62.1(a) “only applies when a ‘timely motion' (typically a Rule 60(b) motion) has been made for relief that the court lacks jurisdiction to grant, because of the pendency of an appeal. Absent an underlying, predicate motion, there is no basis for relief under Rule 62.1.” Id.

         In this case, there is no pending Rule 60(b) motion because the Court denied Plaintiff's June 7, 2019 Rule 60(b) motion on June 13, 2019. Nevertheless, rather than deny Plaintiff's motion for this procedural defect, the Court will incorporate Plaintiff's June 7, 2019 Rule 60(b) motion into this motion and construe the instant motion as a Rule 60(b) motion. Although the appeal deprives this Court of jurisdiction to grant Plaintiff's Rule 60(b) motion, Rule 62.1 grants this Court jurisdiction to defer considering Plaintiff's Rule 60(b) motion, deny Plaintiff's Rule 60(b) motion on its merits, or issue an indicative ruling stating that the Court would grant Plaintiff's Rule 60(b) motion if the Ninth Circuit Court of Appeals remands for that purpose or that Plaintiff's Rule 60(b) motion raises a substantial issue. United States v. Cox, 757 Fed.Appx. 527, 530 (9th Cir. 2018).

         B. The Merits of Plaintiff's Rule 60(b) Motion

         In his Rule 60(b) motion, Plaintiff asks the Court to grant him relief from the judgment rendered against him pursuant to Rule 60(b)(2) or Rule 60(b)(3).

         1. Rule 60(b)(2)

         Under Rule 60(b)(2), a party may obtain relief from judgment where there is “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]” Fed.R.Civ.P. 60(b)(2). “Relief from judgment on the basis of newly discovered evidence is warranted if (1) the moving party can show the evidence relied on in fact constitutes ‘newly discovered evidence' within the meaning of Rule 60(b); (2) the moving party exercised due diligence to discover this evidence; and (3) the newly discovered evidence must be of ‘such magnitude that production of it earlier would have been likely to change the disposition of the case.'” Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (citation omitted).

         Here, Plaintiff asserts that he requested the evidence that he now submits as Exhibits C and D, (also called Exhibits B and C in the same motion), but Defendants did not respond to his discovery request. Instead, Exhibits C and D were discovered after Plaintiff spoke with his correctional counselor and the ...


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