(PC) Ruiz v. Orozco

• Court: District Court, E.D. California
• Decided: September 22, 2022
• Docket: 1:19-cv-00048
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, 1:19-cv-00048-AWI-GSA (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. MOTION TO REOPEN CASE BE DENIED

14 J. OROZCO, et al., (ECF No. 36.)

15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16

18 19 20 21 22 I. BACKGROUND 23 Rogelio May Ruiz (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 24 with this civil rights action pursuant to 42 U.S.C. § 1983. The Complaint commencing this case 25 was filed on December 12, 2018. (ECF No. 1.) On February 2, 2021, the Court dismissed this case 26 in light of Plaintiff’s requests to dismiss this case filed on July 1, 2020 and August 12, 2020. (ECF 27 No. 34.) Judgment was entered on February 2, 2021. (ECF No. 35.) 28 On September 19, 2022, Plaintiff filed a motion to reopen this case. (ECF No. 36.) 1 II. MOTION TO REOPEN CASE 2 A. Rule 60(b) 3 Federal Rule of Civil Procedure 60(b) permits a district court to relieve a party from a final 4 order or judgment on grounds of: (1) mistake, inadvertence, surprise, or excusable neglect; 5 (2) newly discovered evidence that, with reasonable diligence, could not have been 6 discovered in time to move for a new trial under Rule 59(b); 7 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 8 misconduct by an opposing party; 9 (4) the judgment is void; 10 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier 11 judgment that has been reversed or vacated; or applying it prospectively is no 12 longer equitable; or 13 (6) any other reason that justifies relief. 14 Fed. R. Civ. P. 60(b). 15 A Rule 60(b) motion must be made “within a reasonable time -- and for reasons (1), (2), 16 and (3) no more than a year after the entry of the judgment or order of the date of the 17 proceeding.” Fed. R. Civ. P. 60(c)(1); see Hogan v. Robinson, 2009 WL 1085478, at *4 (E.D. Cal. 18 Apr. 22, 2009 (Rule 60(b)(6) motion “filed over 18 months after judgment was entered, and over 19 two years after Plaintiffs were put on notice of the facts and circumstances upon which they rely[ 20 ]” was untimely); Swait v. Evans, 2008 WL 4330291, at *5– 6 (C.D. Cal. Sept. 22, 2008) (Rule 21 60(b) motions untimely where petitioner “failed to proffer any legally valid explanation for his two- 22 year delay” in filing). 23 B. Rule 59(e) – Motion to Alter or Amend a Judgment A motion to alter or amend a judgment must be filed no later than 28 days after the entry of 24 the judgment. Fed. R. Civ. P. 59(e). 25 III. PLAINTIFF’S MOTION 26 Plaintiff requests the Court to reopen his case. Plaintiff explains that he did not file his 27 motion to reopen the case for more than 18 months after the case was closed because he cannot 28 1 speak or read English, and he did not find out that his case was closed until he was informed by the 2 librarian. Plaintiff explains that when he filed his motions to dismiss on July 1, 2020 and August 3 12, 2020, he did not intend to request dismissal of his case in its entirety. Instead, he meant to 4 request dismissal of only one of the defendants, a Jane Doe defendant who is a nurse. Plaintiff 5 asserts that he never would agree to dismiss his Complaint against defendants Orozco and 6 Hernandez because they seriously injured him. 7 Discussion 8 Plaintiff’s case was dismissed and judgment was entered on February 2, 2021, however 9 Plaintiff did not file his motion to reopen the case until more than 18 months later. Therefore, 10 Plaintiff’s motion was untimely under Rule 52(c) and 60(b). 11 Moreover, Plaintiff fails to meet any of the requirements for granting a motion under Rule 12 60(b). He has not shown “mistake, inadvertence, surprise, or excusable neglect.” He has not 13 shown the existence of either newly discovered evidence or fraud; he has not established that the 14 judgment is either void or satisfied; and, finally, Plaintiff has not presented any other reasons 15 justifying relief from judgment. 16 The undersigned is sympathetic to Plaintiff’s challenges as a non-English speaker. 17 Importantly however, if Plaintiff knew that he could not read the Court’s order, he certainly had 18 the responsibility to use due diligence to determine what the Court’s order stated after it was served 19 on him. The fact that he does not speak English is not “newly discovered” information. To the 20 extent that Plaintiff’s circumstances could be considered a “mistake, surprise, or excusable 21 neglect,” Plaintiff’s explanation does nothing to establish that he is entitled to have his case 22 reopened—he is the one who filed two identical motions requesting this court to dismiss his case, 23 without prejudice, if it was determined by the court that he would not be allowed to pursue in his 24 complaint an action against the “c/o female who began all this disruption on 11-11-17”. The court 25 did determine that the “c/o female” should dismissed from the case and she was in fact dismissed 26 from the case with prejudice on the Feb. 2, 2021. Although it was determined by the court that 27 Plaintiff had stated a viable claim for excessive force against two other defendants named in the 28 2AC, based on Plaintiff’s two requests, the remaining claim and two defendants were also 1 dismissed, but without prejudice. Thus, the case was dismissed on Feb. 2, 2021 in its entirety 2 pursuant to Plaintiff’s request as the court had determined Plaintiff’s case could not go forward 3 against the female c/o. Accordingly, the undersigned shall recommend that Plaintiff’s motion to 4 reopen this case be denied. 5 III. CONCLUSION AND RECOMMENDATIONS 6 For the foregoing reasons, IT IS HEREBY RECOMMENDED that Plaintiff’s motion to 7 reopen this case, filed on September 19, 2022, be denied. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 10 (14) days after the date of service of these findings and recommendations, Plaintiff may file written 11 objections with the court. Such a document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 13 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 14 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16

17 Dated: September 21, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18

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