1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 JOHN PAUL FRANK SCHOWACHERT, Case No. 1:21-cv-01107-KES-HBK (PC) 15 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS 16 v. Docs. 20, 21, 22 17 BILL POLLEY, 18 Defendant. 19 20 On April 10, 2024, the court dismissed plaintiff John Paul Mark Schowachert’s case 21 without prejudice for failure to prosecute and failure to comply with court orders. Doc. 18. 22 Before the court are (i) plaintiff’s motion docketed April 18, 2024, objecting to the dismissal of 23 his case, along with his memorandum of points and authorities (Docs. 20–21), and (ii) plaintiff’s 24 motion docketed May 15, 2024, which states that plaintiff seeks to place the case back on the 25 docket and to present new evidence of brain damage (Doc. 22). Liberally construed, plaintiff 26 moves under Federal Rule of Civil Procedure 59(e) to amend the judgment and moves under 27 Rule 60(b) for relief from the court’s dismissal order and judgment. For the reasons set out 28 below, the Court denies plaintiff’s motions. 1 I. BACKGROUND 2 Plaintiff, a state prisoner appearing pro se and in forma pauperis, brought this action under 3 42 U.S.C. § 1983, alleging that correctional officers at the Tuolumne County Jail conspired to 4 murder him. Doc. 1. On August 4, 2023, the assigned magistrate judge issued an order to show 5 cause (“OSC”) directing plaintiff to show cause why the action should not be dismissed as time- 6 barred and frivolous. Doc. 10. Plaintiff’s complaint alleges that the events giving rise to the 7 complaint occurred in January 2017, yet plaintiff did not file the complaint until June 2021, more 8 than four years later. Doc. 1. Plaintiff did not respond to the OSC. See docket. Thereafter, on 9 September 19, 2023, the magistrate judge issued findings and recommendations, recommending 10 that the district court dismiss plaintiff’s complaint without prejudice for failure to prosecute and 11 failure to comply with court orders. Doc. 12. 12 On December 20, 2023, plaintiff filed an untimely objection stating that a prisoner transfer 13 interfered with his ability to respond to the court. Doc. 15. The magistrate judge interpreted 14 plaintiff’s filing as a motion for an extension of time to respond to the OSC and granted plaintiff 15 until January 22, 2024, to file a response. Doc. 16. The magistrate judge’s order notified plaintiff 16 that, if he failed to respond to the OSC by January 22, 2024, the findings and recommendations 17 would be considered as submitted for consideration without objection. Id. at 2. Plaintiff failed to 18 file a response. See docket. On April 10, 2024, the court adopted the magistrate judge’s findings 19 and recommendations in full and ordered the action dismissed without prejudice. Doc. 18. 20 Judgment was entered the same day. Doc. 19. 21 Plaintiff’s motion docketed on April 18, 2024, objects to the dismissal of his case. 22 Doc. 20. To the extent discernible, plaintiff’s motion and his memorandum of points and 23 authorities appear to assert that his failure to prosecute was due to his brain injury and lack of 24 notice of an unspecified court order. See Docs. 20, 21. Plaintiff attaches several medical records. 25 Doc. 20 at 14; Doc. 21 at 8–9. Because plaintiff filed this motion within twenty-eight days of the 26 entry of judgment, it will be considered both as a Rule 59(e) motion to alter or amend the 27 judgment and as a motion under Rule 60(b) for relief from the dismissal order and judgment. 28 See Fed. R. Civ. P. 59(e), 60(b). 1 Plaintiff’s motion docketed on May 15, 2024, seeks to have the case placed back on the 2 docket and to present new evidence of plaintiff’s brain damage.1 Doc. 22. This second motion 3 was filed outside the 28-day window required by Rule 59(e), and the court construes it as a 4 Rule 60(b) motion for relief from the dismissal order and judgment. See Fed. R. Civ. P. 60(b). 5 II. APPLICABLE LAW AND ANALYSIS 6 A. Legal Standard 7 1. Rule 59(e) 8 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or amend its 9 judgment. “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 10 discovered evidence, committed clear error, or if there is an intervening change in the controlling 11 law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation marks omitted) 12 (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam)). In general, a 13 Rule 59(e) motion may be granted on four grounds: “(1) if such motion is necessary to correct 14 manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to 15 present newly discovered or previously unavailable evidence; (3) if such motion is necessary to 16 prevent manifest injustice; or (4) if the amendment is justified by an intervening change in 17 controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). A court may 18 also consider other unusual circumstances in which relief may be appropriate under Rule 59(e). 19 Id. (citing McDowell, 197 F.3d at 1255). A Rule 59(e) motion “must be filed no later than 28 20 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). 21 “[C]ourts of the Ninth Circuit generally treat ‘manifest injustice’ as very nearly 22 synonymous with ‘clear error,’ defining manifest injustice as any ‘error in the trial court that is 23 direct, obvious and observable, such as a defendant’s guilty plea that is involuntary.’” Greenspan 24 v. Fieldstone Fin. Mgmt. Grp., LLC, No. 3:17-CV-233-PK, 2018 WL 4945214, at *6 (D. Or. 25 Aug. 22, 2018). “Manifest injustice,” within the meaning of Rule 59(e), “is not to be used as a 26 1 Under the mailbox rule, plaintiff’s motion (Doc. 22) is deemed filed on May 12, 2024, when 27 plaintiff delivered it to prison authorities for mailing as reflected in plaintiff’s proof of service (Doc. 22 at 11). See Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). 28 1 Trojan Horse to breach a court order for a second chance at litigating the same issue.” All. for the 2 Wild Rockies v. U.S. Forest Serv., No. 1:19-cv-00445-BLW, 2020 WL 7082687, at *2 (D. Idaho 3 Dec. 3, 2020). Similarly, “manifest error” is “an error that is plain and indisputable, and that 4 amounts to a complete disregard of the controlling law or the credible evidence in the record.” In 5 re Oak Park Calabasas Condominium Ass’n, 302 B.R. at 683. Merely disputing the findings of 6 the court is insufficient to support the relief requested. Gates v. Colvin, 2017 WL 8220232, at *1 7 (C.D. Cal. Sept. 5, 2017) (“Mere disagreement with the result does not justify the filing of a Rule 8 59(e) motion.”); see also Mendoza v. Garland, No. 3:21-cv-01968-JES-MMP, 2023 WL 9 6050581, at *2 (S.D. Cal. Sept. 15, 2023) (“mistake or excusable neglect” not recognizable basis 10 for relief under Rule 59(e)). 11 2. Rule 60(b) 12
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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 JOHN PAUL FRANK SCHOWACHERT, Case No. 1:21-cv-01107-KES-HBK (PC) 15 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS 16 v. Docs. 20, 21, 22 17 BILL POLLEY, 18 Defendant. 19 20 On April 10, 2024, the court dismissed plaintiff John Paul Mark Schowachert’s case 21 without prejudice for failure to prosecute and failure to comply with court orders. Doc. 18. 22 Before the court are (i) plaintiff’s motion docketed April 18, 2024, objecting to the dismissal of 23 his case, along with his memorandum of points and authorities (Docs. 20–21), and (ii) plaintiff’s 24 motion docketed May 15, 2024, which states that plaintiff seeks to place the case back on the 25 docket and to present new evidence of brain damage (Doc. 22). Liberally construed, plaintiff 26 moves under Federal Rule of Civil Procedure 59(e) to amend the judgment and moves under 27 Rule 60(b) for relief from the court’s dismissal order and judgment. For the reasons set out 28 below, the Court denies plaintiff’s motions. 1 I. BACKGROUND 2 Plaintiff, a state prisoner appearing pro se and in forma pauperis, brought this action under 3 42 U.S.C. § 1983, alleging that correctional officers at the Tuolumne County Jail conspired to 4 murder him. Doc. 1. On August 4, 2023, the assigned magistrate judge issued an order to show 5 cause (“OSC”) directing plaintiff to show cause why the action should not be dismissed as time- 6 barred and frivolous. Doc. 10. Plaintiff’s complaint alleges that the events giving rise to the 7 complaint occurred in January 2017, yet plaintiff did not file the complaint until June 2021, more 8 than four years later. Doc. 1. Plaintiff did not respond to the OSC. See docket. Thereafter, on 9 September 19, 2023, the magistrate judge issued findings and recommendations, recommending 10 that the district court dismiss plaintiff’s complaint without prejudice for failure to prosecute and 11 failure to comply with court orders. Doc. 12. 12 On December 20, 2023, plaintiff filed an untimely objection stating that a prisoner transfer 13 interfered with his ability to respond to the court. Doc. 15. The magistrate judge interpreted 14 plaintiff’s filing as a motion for an extension of time to respond to the OSC and granted plaintiff 15 until January 22, 2024, to file a response. Doc. 16. The magistrate judge’s order notified plaintiff 16 that, if he failed to respond to the OSC by January 22, 2024, the findings and recommendations 17 would be considered as submitted for consideration without objection. Id. at 2. Plaintiff failed to 18 file a response. See docket. On April 10, 2024, the court adopted the magistrate judge’s findings 19 and recommendations in full and ordered the action dismissed without prejudice. Doc. 18. 20 Judgment was entered the same day. Doc. 19. 21 Plaintiff’s motion docketed on April 18, 2024, objects to the dismissal of his case. 22 Doc. 20. To the extent discernible, plaintiff’s motion and his memorandum of points and 23 authorities appear to assert that his failure to prosecute was due to his brain injury and lack of 24 notice of an unspecified court order. See Docs. 20, 21. Plaintiff attaches several medical records. 25 Doc. 20 at 14; Doc. 21 at 8–9. Because plaintiff filed this motion within twenty-eight days of the 26 entry of judgment, it will be considered both as a Rule 59(e) motion to alter or amend the 27 judgment and as a motion under Rule 60(b) for relief from the dismissal order and judgment. 28 See Fed. R. Civ. P. 59(e), 60(b). 1 Plaintiff’s motion docketed on May 15, 2024, seeks to have the case placed back on the 2 docket and to present new evidence of plaintiff’s brain damage.1 Doc. 22. This second motion 3 was filed outside the 28-day window required by Rule 59(e), and the court construes it as a 4 Rule 60(b) motion for relief from the dismissal order and judgment. See Fed. R. Civ. P. 60(b). 5 II. APPLICABLE LAW AND ANALYSIS 6 A. Legal Standard 7 1. Rule 59(e) 8 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or amend its 9 judgment. “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 10 discovered evidence, committed clear error, or if there is an intervening change in the controlling 11 law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation marks omitted) 12 (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam)). In general, a 13 Rule 59(e) motion may be granted on four grounds: “(1) if such motion is necessary to correct 14 manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to 15 present newly discovered or previously unavailable evidence; (3) if such motion is necessary to 16 prevent manifest injustice; or (4) if the amendment is justified by an intervening change in 17 controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). A court may 18 also consider other unusual circumstances in which relief may be appropriate under Rule 59(e). 19 Id. (citing McDowell, 197 F.3d at 1255). A Rule 59(e) motion “must be filed no later than 28 20 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). 21 “[C]ourts of the Ninth Circuit generally treat ‘manifest injustice’ as very nearly 22 synonymous with ‘clear error,’ defining manifest injustice as any ‘error in the trial court that is 23 direct, obvious and observable, such as a defendant’s guilty plea that is involuntary.’” Greenspan 24 v. Fieldstone Fin. Mgmt. Grp., LLC, No. 3:17-CV-233-PK, 2018 WL 4945214, at *6 (D. Or. 25 Aug. 22, 2018). “Manifest injustice,” within the meaning of Rule 59(e), “is not to be used as a 26 1 Under the mailbox rule, plaintiff’s motion (Doc. 22) is deemed filed on May 12, 2024, when 27 plaintiff delivered it to prison authorities for mailing as reflected in plaintiff’s proof of service (Doc. 22 at 11). See Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). 28 1 Trojan Horse to breach a court order for a second chance at litigating the same issue.” All. for the 2 Wild Rockies v. U.S. Forest Serv., No. 1:19-cv-00445-BLW, 2020 WL 7082687, at *2 (D. Idaho 3 Dec. 3, 2020). Similarly, “manifest error” is “an error that is plain and indisputable, and that 4 amounts to a complete disregard of the controlling law or the credible evidence in the record.” In 5 re Oak Park Calabasas Condominium Ass’n, 302 B.R. at 683. Merely disputing the findings of 6 the court is insufficient to support the relief requested. Gates v. Colvin, 2017 WL 8220232, at *1 7 (C.D. Cal. Sept. 5, 2017) (“Mere disagreement with the result does not justify the filing of a Rule 8 59(e) motion.”); see also Mendoza v. Garland, No. 3:21-cv-01968-JES-MMP, 2023 WL 9 6050581, at *2 (S.D. Cal. Sept. 15, 2023) (“mistake or excusable neglect” not recognizable basis 10 for relief under Rule 59(e)). 11 2. Rule 60(b) 12 Federal Rule of Civil Procedure 60(b) provides relief from a final judgment, order, or 13 proceeding for the following reasons: 14 (1) mistake, inadvertence, surprise, or excusable neglect; 15 (2) newly discovered evidence that, with reasonable diligence, could not have been 16 discovered in time to move for a new trial under Rule 59(b); 17 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 18 misconduct by an opposing party; 19 (4) the judgment is void; 20 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier 21 judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 22 (6) any other reason that justifies relief. 23 Fed. R. Civ. P. 60(b). 24 A motion under Rule 60(b) must be brought within a reasonable time, and, for reasons (1), 25 (2), and (3), no more than a year after the entry of the judgment or order or the date of the 26 proceeding. Fed. R. Civ. P. 60(c)(1). Relief under Rule 60(b) “should be granted sparingly to 27 avoid manifest injustice and only where extraordinary circumstances prevented a party from 28 taking timely action to prevent or correct an erroneous judgment.” Navajo Nation v. Dep’t of the 1 Interior, 876 F.3d 1144, 1173 (9th Cir. 2017) (internal quotations omitted). To succeed on a 2 Rule 60(b) motion, “a party must set forth facts or law of a strongly convincing nature to induce 3 the court to reverse its prior decision.” DeYoung v. On Habeas Corpus, 2013 WL 1876120, at *2 4 (E.D. Cal. May 3, 2013). 5 B. Rule 59(e) Motion 6 Plaintiff does not establish any basis for relief under Rule 59(e). Plaintiff does not 7 provide any evidence of a change in the controlling law or provide newly discovered evidence. 8 Nor has plaintiff set forth any facts to indicate a “direct, obvious and observable” manifest 9 injustice or “plain and indisputable” manifest error. Plaintiff does not dispute the underlying facts 10 and analysis concerning his failure to prosecute that resulted in the dismissal order. See generally 11 Docs. 20, 21. Moreover, plaintiff continues to fail to address the concerns raised in the magistrate 12 judge’s OSC on August 4, 2023, which directed plaintiff to show cause why plaintiff’s claims 13 should not be dismissed as frivolous and time barred. Doc. 10. 14 C. Rule 60(b) Motion 15 Under Rule 60(b)(1), courts are authorized to relieve parties from a final judgment or 16 order for “mistake, inadvertence, surprise, or excusable neglect.” Fed R. Civ. P. 60(b)(1). 17 Liberally construed, plaintiff’s motions appear to argue that his failure to meet the Court’s 18 deadlines was excusable neglect. The decision on a Rule 60(b)(1) motion lies with the sound 19 discretion of the court. Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). 20 Plaintiff fails to establish excusable neglect. Whether a party’s neglect is “excusable” 21 under Rule 60(b)(1) is an equitable determination that “tak[es] account of all relevant 22 circumstances surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. 23 Ltd. P’ship, 507 U.S. 380, 395 (1993). These circumstances include “the danger of prejudice to 24 the [opposing party], the length of delay and its potential impact on judicial proceedings, the 25 reason for the delay, including whether it was within the reasonable control of the movant, and 26 whether the movant acted in good faith.” Id. While the Court is sympathetic to plaintiff’s 27 medical condition, plaintiff does not establish any basis for relief under Rule 60(b)(1). Plaintiff 28 fails to provide any specific explanation for his failure to respond to the court’s orders. 1 | Moreover, plaintiffs motions do not address the statute of limitations issue and do not establish 2 | any basis for plaintiffs claim, even though plaintiff has been on notice of these concerns since the 3 | magistrate judge’s August 4, 2023, OSC. 4 Nor is plaintiff entitled to relief under Rule 60(b)(6). Rule 60(b)(6) is to be “used 5 || sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where 6 | extraordinary circumstances prevented a party from taking timely action to prevent or correct an 7 | erroneous judgment.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 8 || 2006) (cleaned up). Plaintiff has failed to establish either manifest injustice or that the Court’s 9 | order was in error. The interests of finality and the conservation of judicial resources also do not 10 | warrant the use of the extraordinary remedy plaintiff seeks. See United States v. Alpine Land & 11 | Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). “Mere dissatisfaction with court’s order or 12 | belief that the court is wrong in its decision are not adequate grounds for relief under 13 | Rule 60(b)(6).” Brown v. Warden, No 2:10-cv-2040 MCE KJN P, 2011 WL 2559428, at *2 14 | (ED. Cal. June 27, 2011). 15 Plaintiff has failed to establish any basis to alter or amend the judgment under Rule 59(e), 16 | or for relief under Rule 60(b) from the court’s dismissal order and judgment. 17 Accordingly, the Court ORDERS: 18 1. Plaintiff's motion objecting to the dismissal order, Doc. 20, is DENIED. 19 2. Plaintiff's motion to reopen case, Doc. 22, is DENIED. 20 21 92 | IT IS SO ORDERED. _ 23 Dated: _ June 25, 2024 4h UNITED STATES DISTRICT JUDGE
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