(PC) Beavers v. Hosey

Opinion

1 2 3 4 5 6 7 10 11 GARY LEE BEAVERS, Case No. 1:21-cv-00650-HBK (PC) 12 Plaintiff, ORDER FINDING MOOT PLAINTIFF’S CONSTRUED MOTION FOR EXTENSION OF 13 v. TIME TO FILE RULE 59 MOTION

14 OFFICER HOSEY, OFFICER (Doc. No. 46) MENDOZA, and OFFICER ESPINOSA, 15 Defendants. 16 17 Pending before the Court is Plaintiff’s motion for extension of time filed February 11, 18 2025. (Doc. No. 46, “Motion”). Plaintiff seeks an extension of time, until February 24, 2025, to 19 file objections pursuant to Federal Rule of Civil Procedure 72 to the undersigned’s January 29, 20 2024 Order granting Defendants Mendoza and Espinoza’s exhaustion-based motion for summary 21 judgment. Because the parties consented to U.S. Magistrate Judge jurisdiction, the Court 22 construes Plaintiff’s Motion as a motion for extension of time to file a motion for reconsideration 23 under Federal Rule of Civil Procedure 59(e). 24 Plaintiff may seek reconsideration of the Court’s January 29, 2025 Order under either 25 Federal Rule of Civil Procedure 59 or Rule 60. A Rule 59 motion must be filed within twenty- 26 eight (28 days) of judgment. Fed. R. Civ. P. 59(b). However, pursuant to Federal Rule of Civil 27 Procedure 6(b)(2), the Court may not extend Plaintiff's time to act under Federal Rule of Civil 28 Procedure 59(e). Fed. R. Civ. P. 6(b)(2); Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir. 1 | 1993) (affirming the district court denial of extension to file Rule 59 motion because the court 2 | “had no power to extend the time for filing a Rule 59(e) motion”). Thus, any Rule 59(e) motion 3 | must be filed no later than February 26, 2025. Consequently, if Plaintiff files his motion for 4 | reconsideration on or before February 26, 2025, the Rule 59 motion will be timely. Thus, 5 | Plaintiff's Motion seeking an extension until February 24, 2025 to file a Rule 59(e) motion is 6 | unnecessary. 7 Alternatively, a Rule 60 motion must be filed within a “reasonable time” after entry of the 8 | challenged judgment or order, and if brought under certain grounds,! it must be filed no more 9 | than a year after the challenged judgment or order. Fed. R. Civ. P. 60(c)(1). Thus, if filed after 10 | February 26, 2025, the motion will be construed as a motion under Federal Rule of Civil 11 | Procedure 60(b). Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016); see also, Am. 12 | Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). 13 Accordingly, it is ORDERED: 14 1. Plaintiffs motion for extension of time (Doc. No. 46) is moot. 15 2. Plaintiff must deliver his motion for reconsideration under Rule 59 to correctional 16 | officials for mailing no later than February 26, 2025.2 A motion filed after that date, will be 17 | considered as brought under Rule 60(b). 18 | Dated: _ February 20, 2025 Mihaw. Wh. foareh Zaskth 20 HELENA M. BARCH-KUCHTA 1 UNITED STATES MAGISTRATE JUDGE

22 23 24 25 26 ' See Fed. R. Civ. P. 60(b)(1), (2), and (3). > The prison mailbox rule applies to an inmate’s Rule 59 motion. See Atzet v. Paramo, No. 2:17-cv- 27 | 01399-MCE-KIN, 2018 U.S. Dist. LEXIS 96265, at *2 n.2 (E.D. Cal. Jun. 7, 2018); Allah v. Rutledge, 2020 WL 8410446, at *2 (C.D. Cal. Aug. 24, 2020); Wilson v. Arizona, 2019 WL 11025895, at *1 n.1 (D. 28 | Ariz. Apr. 4, 2019).