Freeman v. Arizona, State of

• Court: District Court, D. Arizona
• Decided: September 29, 2021
• Docket: 2:18-cv-01015
• Status: Unknown

Opinion

1 WO KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benjamin Freeman, No. CV 18-1015-PHX-JAT (MHB) 10 Plaintiff, 11 v. ORDER 12 State of Arizona, et al., 13 Defendants.

14 15 Plaintiff Benjamin Freeman, who is currently confined in the Arizona State Prison 16 Complex-Florence, brought this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 17 39.) In an August 2, 2021 Order, the Court granted summary judgment in favor of 18 Defendants based on Plaintiff’s failure to properly exhaust available administrative 19 remedies and directed the Clerk of the Court to enter Judgment. (Doc. 111.) The Clerk of 20 the Court entered Judgment the next day. (Doc. 112.) 21 Pending before the Court are Plaintiff’s Motion for Reconsideration (Doc. 114) and 22 Plaintiff’s Motion for Entry of Judgment (Doc. 115). After Plaintiff filed these Motions, 23 he filed a Notice of Appeal to the Ninth Circuit Court of Appeals (Doc. 116). 24 I. Plaintiff’s Motion for Reconsideration 25 As an initial matter, Plaintiff’s Notice of Appeal does not divest the Court of 26 jurisdiction to consider Plaintiff’s Motion to the extent it was filed pursuant to Rules 59(e) 27 or 60 of the Federal Rules of Civil Procedure. See Fed. R. App. P. 4(a)(4)(B)(i) (“If a party 28 files a notice of appeal after the court announces or enters a judgment—but before it 1 disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a 2 judgment or order, in whole or in part, when the order disposing of the last such remaining 3 motion is entered.”). 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 Moreover, “[a] Rule 59(e) motion should not be granted ‘unless the district court is 21 presented with newly discovered evidence, committed clear error, or if there is an 22 intervening change in the controlling law.’” McQuillion v. Duncan, 342 F.3d 1012, 1014 23 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en 24 banc)). 25 In his Motion for Reconsideration, Plaintiff argues that the Court did not consider 26 Plaintiff’s evidence that “he exhausted his available administrative remedies as to his 27 claims against Lopez, Reyes and Keefe on December 5, 2017 when he submitted his 28 appeals to the Director and that he was prevented from exhaustion of the Grievance 1 Appeals d[ue] to Frisbee’s departure . . . from Manzanita Unit.” (Doc. 114 at 1-2.) 2 Contrary to Plaintiff’s contentions, the Court addressed these arguments, which 3 Plaintiff made in response to the Motion for Summary Judgment, and despite consideration 4 of the arguments, did not find that Plaintiff demonstrated that had exhausted his available 5 administrative remedies or that his administrative remedies were effectively unavailable to 6 him as to his claims against Lopez, Reyes and Keefe. (See Doc. 111 at 11-12.) Plaintiff’s 7 disagreement with the Court’s Order is not a proper basis for reconsideration. Accordingly, 8 Plaintiff’s Motion for Reconsideration will be denied. 9 II. Motion for Entry of Judgment 10 In his Motion for Entry of Judgment, Plaintiff contends that although the Court 11 dismissed his claims without prejudice for failure to properly exhaust available 12 administrative remedies, the Clerk’s Judgment states that the case is dismissed with 13 prejudice. (Doc. 115.) Plaintiff requests that this clerical error be corrected. 14 “The court may correct a clerical mistake or a mistake arising from oversight or 15 omission whenever one is found in a judgment, order, or other part of the record. The court 16 may do so on motion or on its own, with or without notice. But after an appeal has been 17 docketed in the appellate court and while it is pending, such a mistake may be corrected 18 only with the appellate court’s leave.” Fed. R. Civ. P. 60(a). 19 Plaintiff’s Motion will be granted and the Court will direct the Clerk of the Court to 20 amend the Judgment to reflect that Plaintiff’s claims and this action were dismissed without 21 prejudice for failure to properly exhaust available administrative remedies.1 22 IT IS ORDERED: 23 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion 24 for Reconsideration (Doc. 114) and Plaintiff’s Motion for Entry of Judgment (Doc. 115). 25 26

27 1 Although Rule 60(a) requires that the Court seek leave of the appellate court to 28 correct a clerical error, because Plaintiff’s Notice of Appeal is not yet effective, the Court may correct the clerical error without first seeking leave. See Fed. R. App. P. 4(a)(4)(B)(i). 1 (2) Plaintiff's Motion for Reconsideration (Doc. 114) is denied. 2 (3) Plaintiff's Motion for Entry of Judgment (Doc. 115) is granted as follows: the Clerk of the Court must amend the Judgment (Doc. 116) to reflect that □□□□□□□□□□□ 4| claims and this action were dismissed without prejudice for failure to properly exhaust available administrative remedies. 6 Dated this 28th day of September, 2021. 7 8 '

10 _ James A. Teil Org Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28