(PC) Revis v. Moore

• Court: District Court, E.D. California
• Decided: August 18, 2022
• Docket: 1:19-cv-00034
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE L. REVIS, No. 1:19-cv-00034-DAD-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTIONS TO 13 v. REOPEN CASE

14 J. MOORE, et al., (Docs. 48 & 49)

15 Defendants.

16 17 Plaintiff Andre L. Revis is a state prisoner proceeding pro se in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT BACKGROUND 20 Plaintiff initiated this action on January 8, 2019. (Doc. 1.) On January 31, 2019, Plaintiff’s 21 motion to proceed in forma pauperis was granted. (Doc. 8.) 22 Following initial screening (see Doc. 9), Plaintiff filed a first amended complaint on 23 September 25, 2019. (Doc. 12.) 24 In a second screening order issued February 20, 2020, the Court determined that Plaintiff 25 did not state a cognizable claim for relief. (Doc. 14.) Plaintiff was afforded 21 days within which 26 to file a second amended complaint. (Id. at 8.) 27 When more than 21 days passed without the filing of a second amended complaint, the Court issued an Order to Show Cause (OSC) why the action should not be dismissed for 1 Plaintiff’s failure to comply with a court order. (Doc. 15.) Plaintiff was ordered to show cause in 2 writing why the action should not be dismissed, or, alternatively, to file a second amended 3 complaint or voluntary dismissal, within 21 days. (Id. at 2.) 4 Following Plaintiff’s motions for extension of time (Docs. 16 & 17), on April 2, 2020, the 5 Court discharged the OSC and granted Plaintiff an extension of time of 30 days within which to 6 file a second amended complaint. (Doc. 18.) On April 30, 2020, Plaintiff filed his second 7 amended complaint. (Doc. 20.) On May 6, 2020, Plaintiff filed a third amended complaint. (Doc. 8 23.) 9 In a third screening order issued July 28, 2020, Plaintiff was advised his third amended 10 complaint failed to state a claim upon which relief could be granted. (Doc. 24.) The Court granted 11 Plaintiff one final opportunity to amend his complaint curing the deficiencies identified in the 12 screening order; Plaintiff was provided 21 days within which to do so. (Id. at 8.) 13 Following another extension of time, Plaintiff filed his fourth amended complaint on 14 September 4, 2020. (Doc. 27.) 15 On May 21, 2021, the Court issued Findings and Recommendations to dismiss Defendant 16 Corral, and to dismiss Plaintiff’s claims except for the claims against Defendants Moore, Alvarez, 17 Guembe, and Shieffer for violation of the Free Exercise Clause of the First Amendment, pursuant 18 to 42 U.S.C. § 1983, and for violation of the Religious Land Use and Institutionalized Persons 19 Act (RLUIPA). (Doc. 29.) Plaintiff was afforded 21 days within which to file any objections. (Id. 20 at 7-8.) Plaintiff did not file objections. 21 On July 19, 2021, District Judge Dale A. Drozd issued an Order Adopting the findings 22 and recommendations in full and referring the case back to the assigned magistrate judge for 23 further proceedings. (Doc. 30.) Thereafter, service on Defendants Moore, Alvarez, Guembe, and 24 Shieffer was effected. (See Docs. 31-35, 37-38.) 25 On September 17, 2021, Defendants filed a Motion to Revoke Plaintiff’s In Forma 26 Pauperis Status and Dismiss the Complaint. (Doc. 40.) Plaintiff opposed the motion (Doc. 41) 27 and Defendants replied (Doc. 42). On October 29, 2021, the undersigned issued Findings and 1 (Doc. 43.) The Court took judicial notice of four prior actions filed by Plaintiff that were 2 dismissed for a failure to state a claim upon which relief could be granted, and determined that 3 Plaintiff was precluded from proceeding in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(g). 4 (Id. at 2.) The undersigned also found Plaintiff did not meet the imminent danger of serious 5 physical injury exception, and recommended Defendants’ motion be granted, revoking Plaintiff’s 6 IFP status, and allowing Plaintiff 30 days from the adoption of the findings to pay the filing fee in 7 full. (Id. at 3.) Plaintiff was also afforded 21 days within which to file any objections. (Id.) 8 Plaintiff filed objections on November 8, 2021. (See Doc. 44.) 9 On November 24, 2021, Judge Drozd issued an Order Adopting Findings and 10 Recommendations and Granting Defendants’ Motion to Revoke Plaintiff’s In Forma Pauperis 11 Status. (Doc. 45.) Plaintiff was ordered to pay the $400 filing fee in full within 30 days of the 12 date of service of the order, in order to proceed with the action. (Id. at 2.) The order included the 13 following caution: “Plaintiff is forewarned that failure to pay the filing fee within the specified 14 time will result in the dismissal of this action.” (Id. at 3.) 15 When more than 30 days passed without the filing fee being paid, on February 7, 2022, 16 the Court issued its Order Dismissing Action Due to Plaintiff’s Failure to Pay Filing Fee. (Doc. 17 46.) The action was “dismissed without prejudice” and the Clerk of the Court was directed to 18 close the case. (Id. at 2.) Judgment was entered that same date, (Doc. 47), and the case was 19 closed. 20 On July 29, 2022, Plaintiff filed a “Motion to Restate Plaintiff Civil Complaint Upon 21 Receipt of Payment of Order Filing Fees.” (Doc. 48.) 22 On August 15, 2022, Plaintiff filed a “Motion to request and Move the Court to Reopen 23 and Reinstate the Above Entitle Matter with the Filing Fee Enclosed as Requested by the 24 Defendants’ Counselor.” (Doc. 49.)1 25 For the reasons discussed below, the undersigned will recommend Plaintiff’s motions be 26 denied. 27

1 A court only docket entry indicates a check in the sum of $400 was returned to Plaintiff on or about 1 II. DISCUSSION 2 Although Plaintiff does not set forth a rule of procedure, liberally construed, the Court 3 will treat the motions as Rule 60 motions for relief from judgment or order. Fed. R. Civ. P. 60(b). 4 Rule 60(b) provides in pertinent part: 5 On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the 6 following reasons: 7 (1) mistake, inadvertence, surprise, or excusable neglect; 8 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 9 59(b); 10 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 11 (4) the judgment is void; 12 (5) the judgment has been satisfied, released, or discharged: it is 13 based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 14 (6) any other reason that justifies relief. 15 16 Fed. R. Civ. P. 60(b)(1)-(6). A motion under subsections (1), (2), and (3) must be filed within one 17 year; motions made under the other subsections must be filed “within a reasonable time.” Fed. R. 18 Civ. P. 60(c)(1). 19 Under the catch-all provision of Rule 60(b)(6), the court has the power to reopen a 20 judgment even after one year. Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. Partnership, 21 507 U.S. 380, 393 (1993). Subsections (1) through (3) are mutually exclusive of subsection (6), 22 and thus a party asserting “excusable neglect” may not seek relief more than a year after the 23 judgment by relying on subsection (6). Id. (citing Liljeberg v. Health Servs. Acquisition Corp., 24 486 U.S. 847, 863 n.11 (1988)). 25 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the 26 interests of finality and conservation of judicial resources.” Kona Entres., Inc. v. Estate of Bishop, 27 229 F.3d 977, 890 (9th Cir. 2000) (citations omitted); see also Harvest v. Castro, 531 F.3d 737, 1 under Rule 60, the moving party “must demonstrate both injury and circumstances beyond his 2 control.” Harvest, 531 F.3d at 749 (internal quotation marks & citations omitted). 3 “A motion for reconsideration should not be granted, absent highly unusual 4 circumstances, unless the district court is presented with newly discovered evidence, committed 5 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 6 raise arguments or present evidence for the first time when they could reasonably have been 7 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 8 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks & citations omitted). Local Rule 230(j) 9 requires, in relevant part, that a movant show “what new or different facts or circumstances are 10 claimed to exist which did not exist or were not shown” previously, “what other grounds exist for 11 the motion,” and “why the facts or circumstances were not shown” at the time the substance of 12 the order which is objected to was considered. 13 Here, Plaintiff filed his first motion more than five months after judgment was entered. 14 Although otherwise timely, neither motion justifies relief. Plaintiff’s motions indicate he was 15 awaiting receipt of stimulus funds under the CARES Act in order to pay the required filing fee in 16 this case. (See Doc. 48 at 1 & Doc. 49 at 2.) Plaintiff references a previous request for an 17 extension of time within which to pay the filing fee in support of his motion. (See Doc. 49 at 1-2.) 18 As reflected above, on November 8, 2021, Plaintiff filed Objections to the Court’s October 2021 19 findings and recommendations. In that filing, Plaintiff requested an “extension of time in order to 20 either obtain and/or make arrangements to ‘pay’ the court order mandates filing fees.” (Doc. 44 at 21 1.) However, Plaintiff was not granted an extension of time and was instead ordered to pay the 22 $400 filing fee within 30 days of the November 24, 2021, order. (Doc. 45 at 2.) Plaintiff was 23 expressly forewarned “that failure to pay the filing fee within the specified time will result in the 24 dismissal of this action.” (Id. at 3.) Yet, Plaintiff never sought an extension of time to pay the 25 filing fee following the November 2021 order. Nor does Plaintiff explain why he did not do so. 26 Here, Plaintiff is aware of the procedure for requesting an extension of time to comply 27 with a court order. He did so no less than four times in this action before it was closed. (See Docs. 1 2021 order that Plaintiff pay the filing fee within 30 days is, therefore, simply inexcusable. 2 The case was dismissed because Plaintiff failed to pay the filing fee after suffering three 3 or more strikes pursuant to 28 U.S.C. 1915(g). (Docs. 45 & 46.) Plaintiff has failed to identify 4 which subsection of Rule 60(b) or any other rule that would provide relief from the order of 5 dismissal. The undersigned finds Plaintiff has neither asserted, nor made a showing of, mistake, 6 inadvertence, surprise, or excusable neglect, nor a showing of fraud or newly discovered 7 evidence. See Fed. R. Civ. P. 60(b)(1)-(3). Further, neither subsection (4) or (5) of Rule 60(b) are 8 applicable here, and Plaintiff makes no showing in that regard. He neither asserts that the 9 judgment in this action is void, nor that the judgment is based on an earlier judgment that has 10 been reversed or vacated. There is also no other reason justifying relief. Fed. Civ. P. 60(b)(6). 11 In sum, Plaintiff has not set forth facts or law providing a basis upon which the Court 12 should reverse its prior decision. Fed. R. Civ. P. 60(b); Local Rule 230(j). There are also no 13 extraordinary or highly unusual circumstances justifying relief. Kona Entres., Inc. v. Estate of 14 Bishop, 229 F.3d at 890; Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d at 15 880. Finally, dismissal of this action was without prejudice. Such dismissal permits Plaintiff to 16 refile the action with the applicable filing fee, not to reopen the instant case. Therefore, the 17 undersigned will recommend Plaintiff’s motions to reopen this action be denied and that Plaintiff 18 be advised he may file a new action with payment of the required filing fee. 19 III. CONCLUSION AND RECOMMENDATIONS 20 For the reasons set forth above, IT IS HEREBY RECOMMENDED that: 21 1. Plaintiff’s motions to reopen this action (Docs. 48 & 49) be DENIED; 22 2. Plaintiff be advised he may file a new action with payment of the required filing fee 23 should he wish to pursue his claims; 24 3. The Court will not consider any further filings in this closed case; and 25 4. The case remain closed. 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 1 objections with the Court. The document should be captioned, “Objections to Magistrate Judge's 2 Findings and Recommendations.” Plaintiff's failure to file objections within the specified time 3 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 4 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6

7 Dated: August 18, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 8

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