Opinion
No. C10-5033BHS.
June 9, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 9) and Plaintiff Michael Anthony Abels' ("Abels") Objection to Report and Recommendation (Dkt. 10). The Court has considered the Report and Recommendation, Abels' objections, and the remaining record, and hereby adopts the Report and Recommendation for the reasons stated herein.
On March 8, 2010, Abels filed a complaint against Defendants under 42 U.S.C. § 1983. Dkt. 6. The Magistrate Judge then issued an order to amend or show cause why the complaint should not be dismissed because Abels' claims were previously adjudicated by the Court in Case No. 07-5303RBL. Dkt. 7. On March 25, 2010, Abels responded to the order to show cause. Dkt. 8. On April 15, 2010, the Magistrate Judge issued a Report and Recommendation (Dkt. 9) and on April 26, 2010, Abels objected to the Magistrate Judge's Report and Recommendation (Dkt. 10).
In the Report and Recommendation, the Magistrate Judge considered Abels' response to the order to show cause and found that his response confirmed that his current complaint (Dkt. 6) consisted of claims already adjudicated by the Court in his previous case against the same defendants (Case No. C07-5303RBL). Dkt. 9 at 4-5. Therefore, the Magistrate Judge recommends that Abels' complaint be dismissed with prejudice for failure to state a claim as a matter of law under 42 U.S.C. § 1983. Id. at 5.
In his objection, although he is not entirely clear, Abels appears to state that he has newly discovered evidence that a defendant named in his complaint was also a defendant in a prior § 1983 action in which the defendant was accused of committing a crime against a private citizen. Dkt. 10 at 1. Abels states that he "discovered this new evidence almost three years after the fact" and because he did not know how to "consolidate issues newly discovered, he filed a second complaint against the same defendant." Dkt. 10 at 1. Abels then asks the Court to allow him to file a "Motion under CR-42 to consolidate with the prior case, and under Rule 60(b), based on Newly Discovered Evidence, to reopen the prior case in the best interest of justice." Id. The rest of Abels' objections consist of quotations that are irrelevant to the relief he seeks. See Id. at 2-3.
The Court will treat Abels' "Motion under CR-42" as a motion" for consolidation under Rule 42(a) of the Federal Rules of Civil Procedure. Rule 42(a) states: "If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay." Abels' request to have his prior case (Case No. C07-5303RBL) consolidated with his current case under Rule 42(a) is misplaced. Rule 42(a) applies to "actions before the court." Abels' prior case has already been adjudicated by the Court and is no longer an action before the Court. Therefore, Rule 42(a) does not apply and Abels' request for consolidation is denied.
The Court will treat Abels' motion "under Rule 60(b)" as a motion for relief from a final judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b) states: "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)." Abels seeks relief from a final judgment because of "new evidence" that a defendant named in his complaint was also a defendant in another § 1983 action. Dkt. 10 at 1. First, the Court concludes that the "new evidence" could have been discovered in time for Abels to move for a new trial under Rule 59(b) (meaning within twenty-eight days of the entry of final judgment) and therefore does not qualify under Rule 60(b) as grounds for relief from a final judgment. Rule 60(b)(2). Regardless, the purported "new evidence" has no relevance to Abels' prior case or current complaint and thus has no bearing on the Court's final judgment in his prior case or this complaint.
Therefore, it is hereby ORDERED that:
(1) Petitioner's objections are OVERRULED;
(2 The Report and Recommendation is ADOPTED; and
(3) Abels' complaint is DISMISSED with prejudice for failure to state a claim and counts as a strike pursuant to 28 U.S.C. § 1915(g).