Bluford v. United States

Opinion

1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Derek Bluford, No. CV-24-00509-PHX-JAT (ASB) 10 Plaintiff, 11 v. ORDER 12 United States of America, 13 Defendant.

14 15 Plaintiff Derek Bluford has filed a letter to the Court (Doc. 17), which the Court 16 construes as a Motion for Reconsideration of the dismissal of this case. 17 I. Background 18 On March 11, 2024, Plaintiff filed a pro se Verified Complaint and paid the filing 19 and administrative fees. In an April 10, 2024 Order, the Court dismissed the Verified 20 Complaint because it was not filed on this Court’s approved form for filing a civil rights 21 Complaint by a prisoner. The Court gave Plaintiff 30 days to file an amended complaint 22 using the court-approved form included with the Order. 23 On April 26, 2024, Plaintiff filed a First Amended Complaint. In a May 15, 24 2024Order, the Court dismissed the First Amended Complaint because Plaintiff had failed 25 to state a claim. The Court gave Plaintiff 30 days to file a second amended complaint that 26 cured the deficiencies identified in the Order. 27 On May 24, 2024, Plaintiff filed a Second Amended Complaint. On June 10, 2024, 28 he filed a Motion to Amend/Correct and lodged a proposed Third Amended Complaint. In 1 a July 9, 2024 Order, the Court granted the Motion to Amend/Correct and directed the 2 Clerk of Court to file the lodged proposed Third Amended Complaint. The Court 3 dismissed the Third Amended Complaint with leave to amend because Plaintiff had failed 4 to state a claim and gave Plaintiff 30 days to file a fourth amended complaint that cured 5 the deficiencies identified in the Order. 6 Not having received a fourth amended complaint or a motion for extension of time, 7 on September 3, 2024, the Clerk of Court dismissed this case with prejudice and entered 8 judgment. Plaintiff filed his Motion for Reconsideration more than six weeks after the 9 entry of Judgment, on October 22, 2024. 10 II. Motion for Reconsideration 11 In his Motion, Plaintiff asks the Court to reopen this case and rule on his “pending 12 motions.” Plaintiff states that it appears the Court is “unaware” that he “submitted a motion 13 to the Court requesting an additional 60 days, and permission to forgo using the complaint 14 form.” Plaintiff asserts that he “had this motion mailed to the Court via USPS certified 15 mail,” and although the tracking information “proves that it arrived to the Court,” it appears 16 it was not “forwarded” to the undersigned. Plaintiff further states when he received notice 17 that this case was dismissed, he mailed “yet another motion” to the Court informing the 18 Court “of this error” and provided “all of the proof,” including a tracking number and 19 copies. 20 III. Governing Standard 21 The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 22 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 23 (9th Cir. 1992). “The Court will ordinarily deny a motion for reconsideration of an Order 24 absent a showing of manifest error or a showing of new facts or legal authority that could 25 not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). 26 Any motion for reconsideration must specifically identify the matters that were overlooked 27 or misapprehended by the Court. Id. If any new matters are being brought to the Court’s 28 attention for the first time, the movant must identify the reasons they were not presented 1 earlier, and any specific modifications being sought in the Court’s Order. Id. No motion 2 for reconsideration of an Order may repeat any oral or written argument made in support 3 of or in opposition to the motion that resulted in the Order. Id. 4 Rule 60(b), which sets forth the grounds for relief from judgment, “provides for 5 reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; 6 (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged 7 judgment; or (6) ‘extraordinary circumstances’ which would justify relief.” School Dist. 8 No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation 9 omitted). The moving party bears the burden of proving the existence of a basis for Rule 10 60(b) relief. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988). Although the 11 moving party’s factual allegations are to be accepted as true, mere legal conclusions, 12 general denials, or simple assertions are insufficient to justify overturning the underlying 13 judgment. Id. 14 “[A] party merits relief under Rule 60(b)(6) if he demonstrates ‘extraordinary 15 circumstances which prevented or rendered him unable to prosecute his case.” Cmty. 16 Dental Servs. v. Tani, 282 3d 1164, 1168 (9th Cir. 2002). To show extraordinary 17 circumstances, the party must “demonstrate both injury and circumstances beyond his 18 control that prevented him from proceeding with the prosecution or defense of the action 19 in a proper fashion.” Id. 20 IV. Analysis 21 Plaintiff states that after the Court dismissed the Third Amended Complaint for 22 failure to state a claim, he filed a motion seeking an extension of time to file a fourth 23 amended complaint and leave to forgo the requirements of the form complaint. Plaintiff 24 also states that when he received the September 3, 2024 Order dismissing this case, he filed 25 another motion with “proof” that he had filed the first motion. The Court has confirmed 26 that it received no filings from Plaintiff between July 9, 2024 and October 22, 2024, when 27 it received his Motion for Reconsideration. Plaintiff has offered nothing in his Motion for 28 Reconsideration to demonstrate that he filed a motion for extension of time, or any other 1 | motion, after he received the July 9, 2024 Order. The Court will therefore deny Plaintiff’s 2| Motion for Reconsideration. The Court will direct the Clerk of Court to mail Plaintiff a copy of the docket in this case. 4| ITIS ORDERED: 5 (1) Plaintiff’s Motion for Reconsideration (Doc. 17) is denied. 6 (2) The Clerk of Court must mail Plaintiff a copy of the docket in this case. 7 (3) This case must remain closed. 8 Dated this 20th day of December, 2024. 9 10 a 3 C 11 James A. Teil Org Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _4-