Anthony J. Eidem v. Allison, et al.

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTHONY J. EIDEM, Case No. 1:23-cv-01198-JLT-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 11 v. MOTION FOR RELIEF FROM ORDER DISMISSING DEFENDANT GREEN BE 12 ALLISON, et al. DENIED 13 Defendants. (ECF No. 62) 14 OBJECTIONS, IF ANY, DUE WITHIN THIRTY (30) DAYS 15 16 I. INTRODUCTION 17 Plaintiff Anthony J. Eidem (“Plaintiff”) is a state prisoner, currently proceeding pro se1 18 and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 19 2). This case concerns Plaintiff’s claims against Defendants Vang and DOES 1-15 related to 20 allegations that they failed to protect Plaintiff from assaults by other inmates at Avenal State 21 Prison in 2022. (ECF Nos. 21 and 37). 22 On February 9, 2026, Plaintiff filed a motion for relief from dismissal of a prior 23 Defendant, Barry Green. (ECF No. 62). Plaintiff argues that Defendant Green was improperly 24 dismissed by the District Judge on December 23, 2024 due to “gross neglect and constructive 25 abandonment of Plaintiff’s retained counsel over whom Plaintiff exercised no control.” (ECF No. 26 62, at p. 37). 27 For the reasons explained below, the Court will recommend that Plaintiff’s motion for

28 1 Plaintiff was represented by counsel until January 28, 2026. (ECF No. 58). 1 relief for from order dismissing Defendant Green be denied. 2 II. BACKGROUND 3 This case currently proceeds on Plaintiff’s Second Amended Complaint, dated April 8, 4 2024. (ECF No. 21). Plaintiff’s complaint concerns three inmate assaults against Plaintiff that took place in 2022 at Avenal State Prison. Plaintiff claims that Plaintiff warned CDCR officials 5 that he was in danger before the assaults, and they failed to protect him. 6 Plaintiff’s Second Amended Complaint named Barry Green as a defendant, among others. 7 Regarding Defendant Green, Plaintiff alleged: 8

9 BARRY GREEN is a physician’s assistant in the employ of CDCR or the State of California to provide medical care to inmates in the custody of CDCR. Plaintiff is 10 informed and believes and thereon alleges that Mr. green’s duties include creating factual medical records for CDCR, rather than creating false records to “cover for” 11 derelictions of duty by CDCR officers. However, Mr. GREEN conveyed to Dr. Everett Shareck, of Coalinga Regional Medical Center, that Plaintiff’s laceration 12 was the result of Plaintiff cutting himself with “glass that he had apparently broken 13 from a[n] observation window.” This statement is demonstrably false and affected subsequent protection for Plaintiff from future attacks. 14 (ECF No. 21, at p. 6). 15 On September 20, 2024, Defendant Green filed a motion to dismiss the claims against 16 him. (ECF No. 31). Green’s motion to dismiss argued that Plaintiff failed to plead the elements 17 of a negligence claim under California Civil Code § 1714. (ECF No. 31 at 6). Specifically, 18 Plaintiff’s second amended complaint failed to allege that Plaintiff informed Defendant Green 19 that he was attacked or otherwise demonstrate that Defendant Green’s conclusion that Plaintiff 20 had harmed himself breached Defendant Green’s duty of care. Additionally, Defendant Green 21 argued that Plaintiff failed to plead facts indicating Defendant Green’s diagnosis that Plaintiff had 22 cut himself was the proximate cause of the subsequent attacks suffered by Plaintiff. (Id. at 7). 23 Defendants further argued that the attacks suffered by Plaintiff were criminal conduct that were 24 superseding causes of Plaintiff’s injuries. (Id.). Finally, Green argued that any liability on his part was superseded by any alleged deliberate indifference committed by other CDCR officials. (Id.). 25 After Plaintiff, then represented by counsel, did not file any opposition to Defendant 26 Green’s motion to dismiss, the then-presiding Magistrate Judge issued an Order to Show Cause 27 why the motion to dismiss Defendant B. Green from this action should not be granted based on 28 1 Plaintiff’s failure to file a timely opposition. (ECF No. 34). Plaintiff failed to file a response. 2 On December 2, 2024, the then-presiding magistrate judge issued Findings and 3 Recommendations to grant Defendant Green’s motion to dismiss, (ECF No. 35), which the 4 District Judge adopted on December 23, 2024. (ECF No. 37). On January 26, 2026, Plaintiff filed a substitution of attorney request, seeking to represent 5 himself as a pro se litigant. (ECF No. 57). The Court granted his request on January 29, 2026. 6 (ECF No. 58). 7 III. MOTION FOR RELIEF FROM ORDER DISMISSING PA B. GREEN 8 Almost two years later, on February 9, 2026, Plaintiff filed a document titled 9 “Declaration” which contained a motion for relief from the order dismissing Defendant Green, 10 pursuant to Federal Rules of Civil Procedure 60(b)(1) and (b)(6). (ECF No. 62 at 37). 11 In his motion, Plaintiff argues that Defendant Green’s dismissal was not a result based on 12 adjudication on the merits, but “from gross neglect and constructive abandonment of Plaintiff’s 13 retained counsel, over whom Plaintiff exercised no control.” (Id.). Further, Plaintiff claims his 14 counsel withdrew from representation on January 13, 2026, and he seeks prompt relief of the 15 dismissal and abandonment. (Id. at 38). Moreover, Plaintiff claims that following dismissal of 16 Defendant Green, he was not notified and had no opportunity to be heard. (Id.) 17 Plaintiff also argues he has a meritorious claim against Defendant Green. Specifically, 18 Defendant Green, “knowingly authored a false report claiming Plaintiff cut his own neck after 19 breaking a window…interfered with medical care, and obstructed investigation.” (Id. at 4). 20 Plaintiff attached communications between his counsel, Mr. Burkley, and himself. (Id. at 21 44-56). Some of the communications provide the following background regarding the interaction 22 between Plaintiff and Mr. Burkley: From: Anthony Eidem on 12/03/04 08:49 PST Whelp. I just found out that PA Green has 23 been dropped on our Civil Suit. I had to learn of this on my own through the Prison Law Library. 24

25 From: Anthony Eidem on 12/03/04 08:50 PST WHY DID YOU FAIL TO FILE A RESPONSE?! ARE YOU STILL MY ATTORNEY? 26 From: Dennis Burkley on 12/03/04 10:06 PST Yes. I will see what is going on. It is my 27 understanding that findings and recommendations have been entered, and we have a period of time to object. 28 1 From: Dennis Burkley on 12/16/04 11:36 PST Tony, I will not be objecting to the 2 recommendation that Barry Green be dismissed from the case at this time. He can always be reintroduced if there is better evidence that his misrepresentation contributed to your 3 later attacks or CDCR’s deliberate indifference. But you repeatedly communicated your 4 fears to CDCR after your return. There is no tangible proof that he was a factor in your housing decisions… 5 (Id.)2 6 IV. DISCUSSION 7 Federal Rule of Civil Procedure 60 provides circumstances warranting relief from 8 judgment, including the following: 9 (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final 10 judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 11 (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); 12 (3) fraud (whether previously called intrinsic or extrinsic), 13 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; 14 (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 15 prospectively is no longer equitable; or (6) any other reason that justifies relief. 16 Plaintiff’s motion argues that he is entitled to relief from the order dismissing Defendant 17 Green because it resulted from the “gross neglect and constructive abandonment of Plaintiff’s 18 retained counsel.” (ECF No. 62). However, the Ninth Circuit held in the case of Latshaw v. 19 Trainer Wortham & Co., Inc. 452 F.3d 1097 (9th Cir. 2006) that Rule 60(b)(1) does not provide a 20 basis for relief from judgment based on attorney misconduct, as follows: 21

22 A. Rule 60(b)(1) Rule 60(b)(1) provides, “On motion ... the court may relieve a party or a party's 23 legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect.” Latshaw argues that she is entitled to 24 relief under subsection (b)(1) because, but for two mistaken understandings on her 25 part, she would not have signed the acceptance. These alleged “mistakes,” both purportedly originating from Nygaard, were Latshaw's erroneous beliefs (1) that 26 she might be liable for defendants' attorneys' fees if she did not sign the offer of judgment, and (2) that both of her attorneys intended to resign. 27

28 2 Defendant Vang did not file an opposition to Plaintiff’s motion. 1 . . . 2 2 Our court has not yet determined whether such attorney error can provide grounds to vacate a judgment under the mistake ground of Rule 60(b)(1). We have, 3 however, declined similar requests for relief put forth as “excusable neglect,” 4 which is another ground to set aside a judgment under subsection (b)(1). See Casey v. Albertson's, Inc., 362 F.3d 1254, 1260 (9th Cir.2004) (“As a general rule, parties 5 are bound by the actions of their lawyers, and alleged attorney malpractice does not usually provide a basis to set aside a judgment pursuant to Rule 60(b)(1).”); 6 Engleson, 972 F.2d at 1043 (“Neither ignorance nor carelessness on the part of the 7 litigant or his attorney provide grounds for relief under Rule 60(b)(1).”) (internal quotation marks and citation omitted). We find it proper to extend our refusal to 8 provide relief on account of excusable neglect to the alleged attorney-based mistakes of law at issue here. 9 Other circuits have considered this question and have held likewise. . . . 10

11 We agree that Rule 60(b)(1) is not intended to remedy the effects of a litigation decision that a party later comes to regret through subsequently-gained knowledge 12 that corrects the erroneous legal advice of counsel. For purposes of subsection (b)(1), parties should be bound by and accountable for the deliberate actions of 13 themselves and their chosen counsel. This includes not only an innocent, albeit careless or negligent, attorney mistake, but also intentional attorney misconduct. 14 Such mistakes are more appropriately addressed through malpractice claims. See 15 also United States v. Prairie Pharmacy, Inc., 921 F.2d 211, 214 (9th Cir.1990). Id. at 1100–1102. 16 For that reason, Plaintiff’s motion alleging that dismissal was due to neglect on behalf of 17 his prior counsel does not provide a basis for relief from the order dismissing Defendant Green 18 under Rule 60. 19 Moreover, Plaintiff’s motion fails to address any of the bases for dismissal of Defendant 20 Green, which were raised in Defendants’ Motion to Dismiss, the Findings and Recommendations, 21 and the District Judge’s order adopting those Findings and Recommendations. (ECF Nos. 31, 35, 22 and 37). Plaintiff’s motion states he has a meritorious claim against Defendant Green because 23 Defendant Green “knowingly authored a false report claiming Plaintiff cut his own neck after 24 breaking a window…interfered with medical care, and obstructed investigation. (ECF No. 62 at 25 4). However, Plaintiff’s argument does not refute the basis of the Court’s dismissal order, i.e., 26 that Plaintiff had failed to plead the elements of a negligence claim including that Defendant 27 Green’s conduct was the proximate cause of Plaintiff’s injuries. 28 1 V. CONCLUSION AND RECOMMENDATIONS 2 For the reasons given above, IT IS RECOMMENDED as follows: 3 1. Plaintiffs motion for relief from the order dismissing Defendant Green BE DENIED. 4 (ECF No. 62 at 39). 5 These Findings and Recommendations will be submitted to the United States District 6 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 7 thirty (30) days after being served with a copy of these Findings and Recommendations, any party g may file written objections with the Court and serve a copy on all parties. Any objections shall be

9 limited to no more than fifteen (15) pages, including exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the " objections shall be served and filed within fourteen (14) days after service of the objections. The " parties are advised that failure to file objections within the specified time may result in the waiver 2 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 13 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 | ITIS SO ORDERED. | Dated: _March 30, 2026 [Jee hey 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28