Filed: Jul. 03, 2018
Latest Update: Jul. 03, 2018
Summary: REPORT AND RECOMMENDATION EILEEN S. WILLETT , Magistrate Judge . TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE: In May 2016, Plaintiff, who is currently incarcerated at the La Paz County Adult Detention Facility, filed a pro se Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. 1983. On December 21, 2017, the Court dismissed the action without prejudice pursuant to Federal Rule of Civil Procedure 41(b) based on Plaintiff's failure to notify the Court of his
Summary: REPORT AND RECOMMENDATION EILEEN S. WILLETT , Magistrate Judge . TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE: In May 2016, Plaintiff, who is currently incarcerated at the La Paz County Adult Detention Facility, filed a pro se Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. 1983. On December 21, 2017, the Court dismissed the action without prejudice pursuant to Federal Rule of Civil Procedure 41(b) based on Plaintiff's failure to notify the Court of his c..
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REPORT AND RECOMMENDATION
EILEEN S. WILLETT, Magistrate Judge.
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
In May 2016, Plaintiff, who is currently incarcerated at the La Paz County Adult Detention Facility, filed a pro se Civil Rights Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983. On December 21, 2017, the Court dismissed the action without prejudice pursuant to Federal Rule of Civil Procedure 41(b) based on Plaintiff's failure to notify the Court of his current address and failure to respond to the Court's Order to Show Cause (Doc. 76). (Doc. 77).
On May 7, 2018, Plaintiff filed a one-page motion (Doc. 84) seeking to reopen the action "due to the fact that [the La Paz County Adult Detention Facility] continues to violate" prisoners' constitutional rights by allegedly providing meals that lack sufficient calories. Defendants filed a Response (Doc. 85) in opposition, to which Plaintiff has not replied.
In accordance with Federal Rule of Civil Procedure 60(b), the Court may relieve a party from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Rule 60(b)(6) above 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) (quoting Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). For Rule 60(b)(6) to apply, the moving party "must demonstrate both injury and circumstances beyond his control." Latshaw, 452 F.3d at 1103.
The undersigned finds that none of the provisions in Rule 60(b) apply with respect to Plaintiff's request to reopen this case. The undersigned therefore recommends that the Court deny Plaintiff's Motion (Doc. 84). However, because the Court dismissed this matter without prejudice, it is recommended that the Court direct the Clerk of Court to mail to Plaintiff the court-approved "Civil Rights Complaint by a Prisoner" and "Application to Proceed In Forma Pauperis Civil (Non-Habeas)."
Based on the foregoing,
IT IS RECOMMENDED that the Court deny Plaintiff's May 7, 2018 Motion (Doc. 84).
IT IS FURTHER RECOMMENDED that the Court direct the Clerk of Court to mail Plaintiff the court-approved "Civil Rights Complaint by a Prisoner" and "Application to Proceed In Forma Pauperis Civil (Non-Habeas)."
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
