Nguon v. Glynn

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HUNG DUONG NGUON, Case No.: 21cv2113-CAB (JLB) CDCR #K-49649, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION TO VACATE JUDGMENT vs. 14 MARY ANNE GLYNN, et al., 15 Defendants. 16 17 18 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant 19 to 42 U.S.C. § 1983. On June 9, 2022, the Court dismissed Plaintiff’s Second Amended 20 Complaint with prejudice for failure to state a claim pursuant to the screening provisions 21 of 28 U.S.C. § 1915A(b), which require sua sponte dismissal of a prisoner’s complaint, or 22 any portion of it, which fails to state a claim. (ECF No. 19.) On December 7, 2022, 23 Plaintiff constructively filed the instant Motion to Vacate Judgment pursuant to Federal 24 Rule of Civil Procedure 60(b). (ECF No. 22.) 25 A motion to alter or amend a judgment is construed under Rule 59(e) if it is filed 26 within 28 days of entry of judgment; otherwise, it is considered under Rule 60(b) as a 27 motion for relief from a judgment or order. See Am. Ironworks & Erectors, Inc. v. N. Am. 28 Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). 1 Plaintiff’s Motion was received by the Clerk of Court on December 9, 2022; 2 however, the Court considers it filed as of December 7, 2022, the day it was deposited it in 3 the prison mail. (See ECF No. 22 at 8); Houston v. Lack, 487 U.S. 266, 270-72 (1988) (a 4 pro se prisoner pleading is deemed to be “filed” when it is delivered to prison authorities 5 for forwarding to the district court). Thus, because Plaintiff’s Motion was filed more than 6 28 days after the entry of the Court’s Order dismissing this action, it will be considered as 7 brought pursuant to Rule 60(b). See Am. Ironworks & Erectors, 248 F.3d at 898-99. 8 Rule 60(b) empowers a district court to set aside a judgment for any of the following 9 reasons: (1) “mistake, inadvertence, surprise or excusable neglect”; (2) “newly discovered 10 evidence that, with reasonable diligence, could not have been discovered in time to move 11 for a new trial under Rule 59(b)”; (3) “fraud . . . . misrepresentation, or misconduct by an 12 opposing party”; (4) “the judgment is void”; (5) “the judgment has been satisfied released 13 or discharged; it is based on an earlier judgment that has been reversed or vacated; or 14 applying it prospectively is no longer equitable”; or (6) “any other reason that justifies 15 relief.” Fed. R. Civ. P. 60(b). “Rule 60 reconsideration is generally appropriate in three 16 instances: 1) when there has been an intervening change of controlling law, 2) new 17 evidence has come to light, or 3) when necessary to correct a clear error or prevent manifest 18 injustice.” United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 19 2001). The party moving for relief under Rule 60(b) bears the burden of establishing 20 grounds for relief. Id. at 1131. They “must show more than a disagreement with the 21 Court’s decision, and recapitulation of the cases and arguments considered by the court 22 before rendering its original decision fails to carry the moving party’s burden.” Id. (internal 23 quote marks omitted). 24 Here, Plaintiff presents no basis or argument why he seeks to vacate the Court’s 25 judgment of dismissal, but merely repeats language from the Court’s dismissal order, 26 apparently disagreeing with its analysis. (ECF No. 22 at 1-6.) The Court construes 27 Plaintiff’s Motion as brought based on a mistake by the Court. Rule 60(b)(1) allows this 28 Court to relieve a party from an Order based on “mistake, inadvertence, surprise, or 1 || excusable neglect.” However, in order to obtain relief under Rule 60(b)(1), Plaintiff “must 2 show that the district court committed a specific error.” Straw v. Bowen, 866 F.2d 1167, 3 1172 (9th Cir. 1989). It may not be used to ask a court “‘to rethink what the court had 4 ||already thought through-rightly or wrongly.’” Schertzer v. Bank of America, N.A, No. 5 || 19cv0264-JM (MSB), 2021 WL 5849822, at *1 (S.D. Cal. Dec. 9, 2021), quoting Above 6 || the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). Plaintiff 7 ||has not provided nor identified any basis for reconsideration and his Motion must be 8 || denied. 9 Conclusion and Order 10 Accordingly, the Court DENIES Plaintiff's Fed. R. Civ. P. 60(b) Motion for Vacate 11 Court’s June 9, 2022, Order Dismissing his Second Amended Complaint. 12 IT IS SO ORDERED. 13 |}Dated: December 13, 2022 (fb 14 Hon. Cathy Ann Bencivengo 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3