United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO FRCP 60(B)(5) AND (6) (ECF NO.
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.
Susan Mae Polk (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action under 42 U.S.C. § 1983.
November 16, 2015, judgment was entered dismissing this
action with prejudice for failure to state a claim. (ECF Nos.
48, 49.) On December 3, 2015, Plaintiff filed a motion to
alter or amend the judgment pursuant to Federal Rule of Civil
Procedure 59(e) with objections to the order dismissing her
case. (ECF No. 50.) On December 9, 2015, Plaintiff filed a
superseding, amended motion to alter or amend the judgment
pursuant to Federal Rule of Civil Procedure 60(b). (ECF No.
same day Plaintiff filed her amended motion under Rule 60(b),
she also filed a notice of appeal. (ECF Nos. 54, 55.)
Pursuant to Rule 62.1, the Court found that it retained
jurisdiction and authority to deny Plaintiff's amended
motion, which it did on December 17, 2015. (ECF No. 60.)
3, 2017, the United States Court of Appeals for the Ninth
Circuit affirmed the Court's judgment. (ECF No. 67.) The
Ninth Circuit issued its mandate on January 23, 2018. (ECF
Motion for Relief from Judgment
before the Court is Plaintiff's motion for relief from
judgment, filed July 8, 2019. (ECF No. 69.)
Rule of Civil Procedure 60(b) governs the reconsideration of
final orders of the district court. Rule 60(b) permits a
district court to relieve a party from a final order or
judgment on grounds of: “(1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
. . .; (3) fraud . . . of an adverse party; (4) the judgment
is void; (5) the judgment has been satisfied . . . or (6) any
other reason justifying relief from the operation of the
judgment.” Fed.R.Civ.P. 60(b). A motion under Rule
60(b) must be made within a reasonable time, in any event
“not more than one year after the judgment, order, or
proceeding was entered or taken.” Id.
when filing a motion for reconsideration, Local Rule 230(j)
requires a party to show the “new or different facts or
circumstances claimed to exist which did not exist or were
not shown upon such prior motion, or what other grounds exist
for the motion.” Motions to reconsider are committed to
the discretion of the trial court. Combs v. Nick Garin
Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987);
Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983)
(en banc). To succeed, a party must set forth facts or law of
a strongly convincing nature to induce the court to reverse
its prior decision. See, e.g., Kern-Tulare Water
Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.
Cal. 1986), aff'd in part and rev'd in part on
other grounds, 828 F.2d 514 (9th Cir. 1987).
Plaintiff argues that due to the Supreme Court's decision
in Knick v. Township of Scott, Pennsylvania, 139
S.Ct. 2162 (2019), she is no longer required to seek relief
in state court before filing a federal suit for deprivation
of property in violation of the Takings Clause of the Fifth
Amendment, which abrogates the Court's original reasoning
for finding she did not state a claim under the Fifth
Amendment. (ECF No. 69.)
argument is unpersuasive. Plaintiff alleges in the second
amended complaint that Defendant Stockton destroyed her
typewriter after stating that he had the authority based on
her classification level to destroy it, when Plaintiff
actually had a right under the applicable rules and
regulations to either have the typewriter in her cell or have
it mailed home rather than destroyed. (ECF No. 41, pp.
19-20.) Thus, Plaintiff alleges an unauthorized, intentional
deprivation of property, which is actionable under the Due
Process Clause, not the Takings Clause. As originally noted
in the findings and recommendations, later adopted in full by
the Court, due process is satisfied if there is a meaningful
post-deprivation remedy available for the unauthorized,
intentional deprivation. Hudson v. Palmer, 468 U.S.
517, 533 (1984); Quick v. Jones, 754 F.2d 1521, 1524
(9th Cir. 1984). The Supreme Court's decision in
Knick does nothing to change this analysis, and in
fact draws a distinction between “due process for the
unauthorized act of a single employee” and “the
taking of property by the government through
physical invasion or a regulation.” Knick, 139
S.Ct. at 2174 (emphasis in original).
next contends that her access to courts claim under the First
Amendment was dismissed by this Court due to her failure to
show actual injury by explaining the ultimate disposition of
her pending appeal of the dismissal of her habeas petition as
time-barred. However, since judgment was entered in this
action, the Ninth Circuit affirmed the dismissal of her
habeas action as time-barred and the Supreme Court denied ...