1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED VILLERY, Case No. 1:15-cv-01360-KES-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM ORDER GRANTING 13 v. DEFENDANT NELSON SUMMARY JUDGMENT 14 JAY JONES, et al., Doc. 186 15 Defendants.
16 17 Before the Court is plaintiff’s “Motion for Relief from Order Granting Defendant Nelson 18 Summary Judgment.” Doc. 186. Defendant Nelson filed an opposition, as did defendants 19 Escarcega, Jones, Schmidt and Yerton. Docs. 187, 188. Based on the content of the motion, 20 plaintiff seeks relief under Rule 60(b) from the Court’s December 2, 2022 order adopting the 21 findings and recommendations issued on October 14, 2022, and granting summary judgment to 22 defendant Nelson. Docs. 184, 185.1 For the reasons set forth below, plaintiff’s motion for relief 23 is denied. 24 I. Background 25 On September 4, 2015, plaintiff filed this prisoner civil rights action pursuant to 42 U.S.C. 26
27 1 The Court grant’s plaintiff’s motion for leave to file an overdue reply to defendants’ opposition to his motion for reconsideration, Doc. 189, and the Court has considered plaintiff’s reply in 28 ruling on the instant motion. 1 § 1983, alleging prison officials knowingly placed plaintiff in a cell at California Correctional 2 Institution (“CCI”) with another inmate, whose incompatibility created a dangerous housing 3 situation for plaintiff, in retaliation for plaintiff having filed prison grievances. See Doc. 1. On 4 June 22, 2020, defendant Nelson filed a motion for summary judgment as to plaintiff’s retaliation 5 claim against him. Doc. 85. On May 26, 2021, defendants Escarcega, Jones, Schmidt, and 6 Yerton filed a separate motion for summary judgment. Doc. 129. Plaintiff was granted five 7 extensions of time to file an opposition to defendant Nelson’s motion. See Docs. 160, 162. In 8 denying his sixth request for an extension of time, the magistrate judge advised plaintiff that both 9 summary judgment motions would be deemed submitted on December 21, 2021, based upon the 10 record then before the Court. Doc. 162 at 4. On December 9, 2021, plaintiff filed an opposition 11 to defendants Escarcega, Jones, Schmidt, and Yerton’s motion. Doc. 164. Plaintiff did not file an 12 opposition to defendant Nelson’s motion. 13 On October 14, 2022, the magistrate judge issued findings and recommendations 14 recommending that defendant Nelson’s motion for summary judgment be granted. Doc. 184. 15 Plaintiff was required to file any objections within fourteen days but failed to do so. On 16 December 2, 2022, the Court adopted the findings and recommendations and granted defendant 17 Nelson’s motion for summary judgment. Doc. 185. On April 28, 2023, plaintiff filed the instant 18 motion for reconsideration. Doc. 186. 19 II. Discussion 20 “A motion for reconsideration should not be granted, absent highly unusual 21 circumstances, unless the district court is presented with newly discovered evidence, committed 22 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 23 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). A party seeking 24 reconsideration must show “more than a disagreement with the Court’s decision, and 25 recapitulation of the cases and arguments considered by the court before rendering its original 26 decision fails to carry the moving party’s burden.” United States v. Westlands Water Dist., 134 F. 27 Supp. 2d 1111, 1131 (E.D. Cal. 2001). 28 1 Here, plaintiff contends that negligence by the mailroom staff at California Institution for 2 Men (“CIM”) prevented or delayed the delivery of his objections to the October 14, 2022 findings 3 and recommendations. Doc. 186 at 5. These claims, liberally construed, fit under the “mistake, 4 inadvertence, surprise, or excusable neglect” provision of Rule 60(b)(1) because plaintiff was 5 under the mistaken impression his objections had been received by the Court and now seeks 6 reconsideration. See Johnson v. Biter, No. C 15-3640 WHA (PR), 2017 WL 2265369, *1 (E.D. 7 Cal. May 24, 2017). In determining whether a party’s error qualifies for relief under Rule 8 60(b)(1), courts consider: “(1) the danger of prejudice to the opposing party; (2) the length of the 9 delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the 10 movant acted in good faith.” Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) 11 (internal quotations omitted). The ultimate decision of whether to grant a Rule 60(b)(1) motion, 12 however, lies within “the sound discretion of the district court.” Barber v. State of Hawaii, 42 13 F.3d 1185, 1198 (9th Cir. 1994). 14 A. Danger of Prejudice 15 On the first prong, “[p]rejudice requires greater harm than simply that relief would delay 16 resolution of the case.” Lemoge, 587 F.3d at 1192 (citing TCI Group Life Ins. Plan v. Knoebber, 17 244 F.3d 691, 701 (9th Cir. 2001)). Here, in contrast to a dismissal for failure to serve as in 18 Lemoge, defendant Nelson litigated the case on the merits. See Doc. 85. The findings and 19 recommendations considered the merits of defendant’s arguments and determined that plaintiff’s 20 evidence failed to establish a genuine dispute of material fact to survive summary judgment. 21 Doc. 184 at 17. On this basis, defendant Nelson would be prejudiced by having to re-litigate 22 these issues. 23 B. Length of Delay 24 Plaintiff filed his Rule 60(b) motion roughly six months after the Court entered judgment 25 in this matter and dismissed defendant Nelson from the action. This is a significant period of 26 time, although less than the 1-year limit imposed by 60(c). The Ninth Circuit has found longer 27 delays excusable under Rule 60(b)(1). See, e.g., Lemoge, 587 F.3d at 1197 (approximately seven 28 1 month delay in filing Rule 60(b) motion). For that reason, the second factor regarding length of 2 delay neither favors nor weighs against plaintiff. 3 C. Reason for Delay and Good Faith 4 The third and fourth factors, plaintiff’s reason for delay and whether the motion is brought 5 in good faith, are central to plaintiff’s motion. Plaintiff contends that the delay in filing 6 objections to the October 14, 2022 findings and recommendations is attributable to the negligence 7 of prison mailroom officials. He presents as evidence his own declaration, circumstantial 8 evidence from another active case in which he alleges mail was not delivered to him, and a legal 9 mail log purporting to show that no incoming legal mail for plaintiff was recorded after July 18, 10 2022, and no outgoing mail was recorded sent after June 16, 2022. See generally Doc. 186. 11 Unlike the plaintiffs in the cases he cites, however, plaintiff has not presented circumstances 12 sufficiently persuasive for the Court to reverse its prior ruling. Moreover, plaintiff has failed to 13 establish any excuse for failing to respond in the first instance to the motion for summary 14 judgment. 15 The authorities cited by plaintiff in support of his argument are distinguishable. For 16 example, in Hamilton v. Llamas, No. 1:10-cv-00272-LJO-GSA-PC, 2015 WL 1879962 (E.D. 17 Cal. Apr. 23, 2015), prisoner plaintiff sought reconsideration of an order dismissing his case for 18 failure to prosecute by providing evidence of his good faith efforts to comply with court 19 deadlines. Id. at *1–*2. The plaintiff presented the court with copies of envelopes that he had 20 mailed to the Court, which came back undeliverable, and copies of his legal log, showing that he 21 had mailed his pleadings timely but to an old address for the district court. Id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED VILLERY, Case No. 1:15-cv-01360-KES-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM ORDER GRANTING 13 v. DEFENDANT NELSON SUMMARY JUDGMENT 14 JAY JONES, et al., Doc. 186 15 Defendants.
16 17 Before the Court is plaintiff’s “Motion for Relief from Order Granting Defendant Nelson 18 Summary Judgment.” Doc. 186. Defendant Nelson filed an opposition, as did defendants 19 Escarcega, Jones, Schmidt and Yerton. Docs. 187, 188. Based on the content of the motion, 20 plaintiff seeks relief under Rule 60(b) from the Court’s December 2, 2022 order adopting the 21 findings and recommendations issued on October 14, 2022, and granting summary judgment to 22 defendant Nelson. Docs. 184, 185.1 For the reasons set forth below, plaintiff’s motion for relief 23 is denied. 24 I. Background 25 On September 4, 2015, plaintiff filed this prisoner civil rights action pursuant to 42 U.S.C. 26
27 1 The Court grant’s plaintiff’s motion for leave to file an overdue reply to defendants’ opposition to his motion for reconsideration, Doc. 189, and the Court has considered plaintiff’s reply in 28 ruling on the instant motion. 1 § 1983, alleging prison officials knowingly placed plaintiff in a cell at California Correctional 2 Institution (“CCI”) with another inmate, whose incompatibility created a dangerous housing 3 situation for plaintiff, in retaliation for plaintiff having filed prison grievances. See Doc. 1. On 4 June 22, 2020, defendant Nelson filed a motion for summary judgment as to plaintiff’s retaliation 5 claim against him. Doc. 85. On May 26, 2021, defendants Escarcega, Jones, Schmidt, and 6 Yerton filed a separate motion for summary judgment. Doc. 129. Plaintiff was granted five 7 extensions of time to file an opposition to defendant Nelson’s motion. See Docs. 160, 162. In 8 denying his sixth request for an extension of time, the magistrate judge advised plaintiff that both 9 summary judgment motions would be deemed submitted on December 21, 2021, based upon the 10 record then before the Court. Doc. 162 at 4. On December 9, 2021, plaintiff filed an opposition 11 to defendants Escarcega, Jones, Schmidt, and Yerton’s motion. Doc. 164. Plaintiff did not file an 12 opposition to defendant Nelson’s motion. 13 On October 14, 2022, the magistrate judge issued findings and recommendations 14 recommending that defendant Nelson’s motion for summary judgment be granted. Doc. 184. 15 Plaintiff was required to file any objections within fourteen days but failed to do so. On 16 December 2, 2022, the Court adopted the findings and recommendations and granted defendant 17 Nelson’s motion for summary judgment. Doc. 185. On April 28, 2023, plaintiff filed the instant 18 motion for reconsideration. Doc. 186. 19 II. Discussion 20 “A motion for reconsideration should not be granted, absent highly unusual 21 circumstances, unless the district court is presented with newly discovered evidence, committed 22 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 23 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). A party seeking 24 reconsideration must show “more than a disagreement with the Court’s decision, and 25 recapitulation of the cases and arguments considered by the court before rendering its original 26 decision fails to carry the moving party’s burden.” United States v. Westlands Water Dist., 134 F. 27 Supp. 2d 1111, 1131 (E.D. Cal. 2001). 28 1 Here, plaintiff contends that negligence by the mailroom staff at California Institution for 2 Men (“CIM”) prevented or delayed the delivery of his objections to the October 14, 2022 findings 3 and recommendations. Doc. 186 at 5. These claims, liberally construed, fit under the “mistake, 4 inadvertence, surprise, or excusable neglect” provision of Rule 60(b)(1) because plaintiff was 5 under the mistaken impression his objections had been received by the Court and now seeks 6 reconsideration. See Johnson v. Biter, No. C 15-3640 WHA (PR), 2017 WL 2265369, *1 (E.D. 7 Cal. May 24, 2017). In determining whether a party’s error qualifies for relief under Rule 8 60(b)(1), courts consider: “(1) the danger of prejudice to the opposing party; (2) the length of the 9 delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the 10 movant acted in good faith.” Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) 11 (internal quotations omitted). The ultimate decision of whether to grant a Rule 60(b)(1) motion, 12 however, lies within “the sound discretion of the district court.” Barber v. State of Hawaii, 42 13 F.3d 1185, 1198 (9th Cir. 1994). 14 A. Danger of Prejudice 15 On the first prong, “[p]rejudice requires greater harm than simply that relief would delay 16 resolution of the case.” Lemoge, 587 F.3d at 1192 (citing TCI Group Life Ins. Plan v. Knoebber, 17 244 F.3d 691, 701 (9th Cir. 2001)). Here, in contrast to a dismissal for failure to serve as in 18 Lemoge, defendant Nelson litigated the case on the merits. See Doc. 85. The findings and 19 recommendations considered the merits of defendant’s arguments and determined that plaintiff’s 20 evidence failed to establish a genuine dispute of material fact to survive summary judgment. 21 Doc. 184 at 17. On this basis, defendant Nelson would be prejudiced by having to re-litigate 22 these issues. 23 B. Length of Delay 24 Plaintiff filed his Rule 60(b) motion roughly six months after the Court entered judgment 25 in this matter and dismissed defendant Nelson from the action. This is a significant period of 26 time, although less than the 1-year limit imposed by 60(c). The Ninth Circuit has found longer 27 delays excusable under Rule 60(b)(1). See, e.g., Lemoge, 587 F.3d at 1197 (approximately seven 28 1 month delay in filing Rule 60(b) motion). For that reason, the second factor regarding length of 2 delay neither favors nor weighs against plaintiff. 3 C. Reason for Delay and Good Faith 4 The third and fourth factors, plaintiff’s reason for delay and whether the motion is brought 5 in good faith, are central to plaintiff’s motion. Plaintiff contends that the delay in filing 6 objections to the October 14, 2022 findings and recommendations is attributable to the negligence 7 of prison mailroom officials. He presents as evidence his own declaration, circumstantial 8 evidence from another active case in which he alleges mail was not delivered to him, and a legal 9 mail log purporting to show that no incoming legal mail for plaintiff was recorded after July 18, 10 2022, and no outgoing mail was recorded sent after June 16, 2022. See generally Doc. 186. 11 Unlike the plaintiffs in the cases he cites, however, plaintiff has not presented circumstances 12 sufficiently persuasive for the Court to reverse its prior ruling. Moreover, plaintiff has failed to 13 establish any excuse for failing to respond in the first instance to the motion for summary 14 judgment. 15 The authorities cited by plaintiff in support of his argument are distinguishable. For 16 example, in Hamilton v. Llamas, No. 1:10-cv-00272-LJO-GSA-PC, 2015 WL 1879962 (E.D. 17 Cal. Apr. 23, 2015), prisoner plaintiff sought reconsideration of an order dismissing his case for 18 failure to prosecute by providing evidence of his good faith efforts to comply with court 19 deadlines. Id. at *1–*2. The plaintiff presented the court with copies of envelopes that he had 20 mailed to the Court, which came back undeliverable, and copies of his legal log, showing that he 21 had mailed his pleadings timely but to an old address for the district court. Id. The Court 22 ultimately found the evidence demonstrated a good faith attempt by the plaintiff to comply with 23 court orders and set forth “facts of a strongly convincing nature” sufficient to warrant 24 reconsideration of its prior order adopting the findings and recommendations dismissing the case. 25 Id. at *2. 26 In Jacobs v. CDCR, No. 1:20-cv-00547-DAD-BAM, 2021 WL 5449700 (E.D. Cal. Nov. 27 22, 2021), plaintiff filed a motion for reconsideration of an order dismissing his case, arguing that 28 1 mailroom delays in delivering to him a pertinent court order prevented him from timely 2 complying and filing a first amended complaint (“FAC”). Id. at *1–*2. The court had issued an 3 order directing plaintiff to file a FAC or face dismissal. Id. The plaintiff received the order on 4 August 3, and the deadline to respond was August 4. Id. Therefore, the plaintiff reasonably 5 contended that it was impossible for him to comply with the deadline to respond. Id. In support 6 of his contention, the plaintiff provided mail logs showing that he had in fact received the 7 findings and recommendations on August 3. Id. at *2. The plaintiff contended that he had timely 8 prepared a FAC and was awaiting the court’s orders before filing it, which the court found 9 credible because, on September 1, it received the motion for reconsideration with a FAC attached. 10 Id. The court found the above evidence sufficient to warrant granting the plaintiff’s motion for 11 reconsideration and accept the FAC as filed. 12 Here, plaintiff has not provided the kind of detailed and credible factual account of his 13 attempts to file his objections that was critical to the rulings he cites in his motion. Unlike with 14 the plaintiff in Hamilton, here plaintiff’s legal mail logs do not reflect any attempt to send legal 15 mail to this Court around October 28, 2022, when he claims to have done so. See Doc. 186 at 76– 16 80. Plaintiff contends the explanation is that the mailroom at CIM was neither processing nor 17 logging legal mail during the time in question, id. at 8, but this claim is supported only by 18 plaintiff’s own declaration. It is also contradicted by a more complete copy of plaintiff’s legal 19 mail log for the relevant time period, produced by the defendants in the related case Villery v. 20 Crounse, et al., No. 1:18-cv-01623-JLT-SKO (E.D. Cal.). See generally Crounse, Doc. 139-1. 21 The Court takes judicial notice of those records, which reflect—contrary to the copy provided by 22 plaintiff—that he consistently received and signed for mailings from this Court throughout 2022, 23 which are properly documented in the legal mail log.2 24 Also pertinent to this matter, defendants in Villery v. Crounse attached a copy of an
25 2 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not subject to reasonable dispute” where they are either “generally known within the trial court’s territorial 26 jurisdiction,” or they “can be accurately and readily determined from sources whose accuracy 27 cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts take judicial notice of other court proceedings “if those proceedings have a direct relation to the matters at issue.” U.S. ex. 28 Rel. Robinson Rancheria Citizens Counsel v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 1 Offices of Grievance Decision concerning plaintiff’s grievance alleging the mailroom had lost 2 two pieces of his outgoing legal mail, including the October 28, 2022 objections. Crounse, Doc. 3 139-2 at 4–5. The interviewing officer asked plaintiff whether he could provide a copy of the 4 “California Institution for Men (CIM) Proof of Service of Mail” Attachment F. Id. Plaintiff 5 stated he was unaware of the form. Id. The officer explained that “without the proof of service, 6 there is no way to show proof that those letters were sent to the mailroom as legal mail.” Id. 7 The other evidence purporting to support plaintiff’s claim to have timely prepared and 8 filed objections to the findings and recommendations is the objections themselves, attached to 9 plaintiff’s motion. See Doc. 186 at 25-48. The objections are signed and dated October 28, 2022, 10 with a proof of service signed by plaintiff, but there is no evidence to support plaintiff’s 11 contention that they were actually submitted on that date. The legal mail log reflects no outgoing 12 legal mail on or around that date. Id. at 76-80. The mere existence of the objections does not 13 support plaintiff’s account. Whereas in Jacobs, the court found credible that plaintiff had timely 14 prepared a FAC in part because he submitted the missing filing roughly three weeks after 15 realizing they had not been received, here plaintiff took nearly six months to submit his 16 objections, and he does not explain why they were not sent earlier. 17 Finally, plaintiff fails to establish any excuse for his failure to oppose defendant Nelson’s 18 motion for summary judgment in the first instance, and, in any event, his objections do not 19 undermine the findings and recommendations. This shows a lack of good faith by plaintiff in 20 advancing the instant motion. 21 Plaintiff’s delay in seeking relief, the lack of proof that he timely sought to file objections, 22 and the prejudice to defendants weigh against granting his motion for relief under Rule 60(b). 23 Moreover, the interests of finality and the conservation of judicial resources do not warrant the 24 sparing use of the extraordinary remedy plaintiff seeks. Kona Enters., Inc. v. Est. of Bishop, 229 25 F. 3d 877, 890 (9th Cir. 2000). 26 /// 27 /// 28 /// 1 Accordingly: 2 1. Plaintiffs motion for leave to file an overdue reply, Doc. 189, is GRANTED; and 3 2. Plaintiff's motion, Doc. 186, for relief from the order granting defendant Nelson 4 summary judgment, is DENIED. 5 6 7 | ITISSO ORDERED. _ 8 Dated: _ October 13, 2025 4h 9 UNITED STATES DISTRICT JUDGE
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