United States District Court, E.D. California
ORDER DENYING MOTION FOR RECONSIDERATION (DOC. NO.
87)
Plaintiff
George Vasquez is a former civil detainee at the Coalinga
State Hospital (“CSH”) proceeding pro se
and in forma pauperis in this civil rights action
brought pursuant to 42 U.S.C. § 1983. On September 30,
2019, the undersigned issued an order adopting in full the
assigned magistrate judge's September 11, 2019 findings
and recommendations recommending that plaintiff's
complaint be dismissed (1) as moot and (2) due to his failure
to file an amended complaint. (Doc. No. 83.) On October 17,
2019, plaintiff moved this court for reconsideration of the
September 30, 2019 order. (Doc. No. 57.)
Federal
Rule of Civil Procedure 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 judgment.”
Relief 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 Rules 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 plaintiff 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. “A 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).
Here,
the pending motion falls far short of meeting these
standards. Plaintiff argues that he was not able to timely
object to the September 11, 2019 findings and recommendations
because he did not receive them until September 13, 2019 and
that “his volunteer assistant, ” who apparently
received his own copy of the findings and recommendations on
September 19, 2019, was not able to work on plaintiff's
objections until after the deadline to file objections had
passed. (Doc. No. 87 at 1.) Plaintiff's arguments in this
regard fail to show mistake, inadvertence, surprise, or
excusable neglect; nor do they reveal the existence of either
newly discovered evidence or fraud; nor do they establish
that the judgment is either void or satisfied; nor do they
present any other reasons justifying relief from judgment.
Moreover, pursuant to the court's Local Rules, plaintiff
has not shown “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.” Local Rule 230(j). In the pending motion for
reconsideration plaintiff essentially states that he did not
object to the findings and recommendations in a timely
fashion because the person he relied on for help was not
available until after the deadline to object had passed.
Plaintiff, however, cites to no authority in support of his
position that him requiring assistance in litigating this
action can form the basis of his motion for reconsideration
of the court's September 30, 2019 order. Indeed,
“regardless of whether [plaintiff's
‘volunteer assistant'] was acting as his
‘jailhouse lawyer' here, plaintiff, as a pro
se litigant, still bears the responsibility of
prosecuting his own case, ” Oster v. Clarke,
No. C07-5508RJB-KLS, 2009 WL 279056, at *3 (W.D. Wash. Feb.
2, 2009), which includes complying with court orders and
timely filing objections to a magistrate judge's findings
and recommendations to a district court judge. See
Nicklas v. Giordano, No. CV 12-2918-VAP AS, 2014 WL
3405833, at *8 (C.D. Cal. July 10, 2014) (“[P]ro se
prisoner litigants do not enjoy an absolute right to have a
jailhouse lawyer assist with legal representation, make
appearances on their behalf, or file papers with the court as
the litigant's legal representative.”).
Finally,
the court notes that neither the pending motion for
reconsideration, nor plaintiff's pending (and untimely)
motion for extension of time to file objections to the
September 11, 2019 findings and recommendations (Doc. No. 86)
or his untimely objections themselves (Doc. No. 85),
meaningfully dispute the magistrate judge's findings that
his claims have been rendered moot and, separately, that the
action should be dismissed due to his failure to file an
amended complaint. The California Department of State
Hospitals (“DSH”) regulation that plaintiff is
challenging in his complaint was amended while this action
was pending, rendering plaintiff's complaint moot. (Doc.
No. 82 at 1.) The court afforded plaintiff an opportunity to
file an amended complaint to assert any additional challenge
he might have wished to assert against the then-newly amended
regulation. (Id. at 1.) This he did not do. After
several months had passed and plaintiff did not file an
amended complaint, the court issued two orders to show cause
requiring plaintiff to show why the case should not be
dismissed as moot and due to plaintiff's failure to file
an amended complaint. Plaintiff's response to those
orders did not dispute that his complaint has been rendered
moot in light of the DSH's amended regulation.
Accordingly,
1. Plaintiff s motion for reconsideration (Doc. No. 87) is
denied;
2.
Plaintiffs motion for extension of time to file objections
(Doc. No. 86) is denied; and
3. The
Clerk of the Court is ...