(HC) Proffitt v. Lizarraga

Opinion

JERRY DANIEL PROFFITT, No. 2:19-cv-1510 WBS CKD P Petitioner, v. FINDINGS AND RECOMMENDATIONS Respondent. By order filed September 3, 2019, this action was dismissed (ECF No. 11) and judgment was entered the same day (ECF No. 12). Petitioner filed objections to the findings and recommendations on December 5, 2019,1 (ECF No. 18), followed by a motion for rehearing on January 5, 2020 (ECF No. 19), which will be construed as motions for reconsideration. A motion for reconsideration or relief from a judgment is appropriately brought under either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)). The motion “is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) if it is filed [within the time provided by that Rule]. Otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or order.” Am. Ironworks & Erectors, Inc. v. N. 1 Since petitioner is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988). Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (citations omitted). Since plaintiff’s motion for reconsideration was filed more than twenty-eight days after the entry of judgment, the motions are considered under Rule 60(b). “Rule 60(b) enumerates specific circumstances in which a party may be relieved of the effect of a judgment, such as mistake, newly discovered evidence, fraud, and the like. The Rule concludes with a catchall category—subdivision (b)(6)—providing that a court may lift a judgment for ‘any other reason that justifies relief.’ Relief is available under subdivision (b)(6), however, only in ‘extraordinary circumstances.’” Buck v. Davis, 137 S. Ct. 759, 771-72 (2017). Further, Local Rule 230(j) requires that a motion for reconsideration state “what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion; and why the facts or circumstances were not shown at the time of the prior motion.” L.R. 230(j)(3)-(4). The petition was dismissed without prejudice because it was an unauthorized second or successive petition. (ECF Nos. 5, 11.) In his motions to reconsider, petitioner argues that his newly presented evidence relates back to his original claims (ECF No. 18 at 1) and that the court should have ordered the production of transcripts (ECF No. 19 at 1-3). Neither motion provides any basis for finding that petitioner has received authorization from the Ninth Circuit to proceed on his petition and the motions should therefore be denied. Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motions for reconsideration (ECF Nos. 18, 19) be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections //// //// //// within the specified time may waive the right to appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). Dated: January 13, 2020 a ad J. kt / i ea CAROLYNK.DELANEY | UNITED STATES MAGISTRATE JUDGE 13:prof1510.60b.f&r