Garcia v. Peralta

Full title: ALBERT R. GARCIA, Plaintiff, v. AL PERALTA, et al., Defendants

Court: United States District Court, D. Nevada

Date published: Nov 15, 2005

No. CV-N-04-0525-ECR(VPC) (D. Nev. Nov. 15, 2005)

Opinion

No. CV-N-04-0525-ECR(VPC).

November 15, 2005

ORDER

EDWARD REED, District Judge

Plaintiff Garcia has sent a letter to the court asking for reconsideration of the entry of judgment against him. Docket #11. Though Garcia requests relief under Fed.R.Civ.P. 59(e), he submitted his letter well beyond the 10 day time limit for filing a Rule 59(e) motion. Thus, the court will treat the letter as motion for relief from judgment under Fed.R.Civ.P. 60(b). See Rodriguez v. Southern Pac. Trans. Co., 587 F.2d 980, 981 (9^th Cir. 1978).

This court entered judgment against Garcia, a prisoner proceeding in forma pauperis, based on a finding that his civil complaint failed to state a claim for which relief may be granted. Docket #9. Prior to doing so, the court had notified Garcia as to the defects in his claims and granted him leave to file an amended complaint. Docket #5. When Garcia claimed that he was unable to file an amended complaint within the time initially allotted, the court granted him a sixty day extension. Docket #8. The court dismissed this case and entered judgment when Garcia failed, within the additional time allotted, to either filed an amended complaint or request additional time in which to do so. Docket #9/#10. In all, Garcia was allowed more than three months in which to file an amended complaint.

Garcia's request for relief from judgment is based primarily on a claim that he was undergoing serious medical problems during the time his case was pending. While Garcia's situation evokes sympathy, he has not presented a convincing case for setting aside the court's judgment. First, he has not articulated how he would amend his complaint to state a claim that would survive Rule 12(b)(6) screening. Instead, he states he "needs to research his issues in order to properly and adequately amend his complaint." Docket #11, p. 2. The court is not inclined to reopen this case in the absence of any showing that Garcia will be able to present a complaint containing a viable claim for relief. See Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995) (Rule 60(b) movant must provide court with reason to believe that vacating the judgment will not be an empty exercise or a futile gesture); see also, Madsen v. Bumb, 419 F.2d 4, 6 (9^th Cir. 1969); 11 WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857 (1995 Supp. 2005).

Second, Garcia has not explained why he did not move for an additional extension of time prior to entry of judgment. It appears that Garcia was able to file a motion for extension of time at a time when his medical problems were (based on his letter) at their most severe. See Docket #7. Thus, even if his health prevented him from drafting an amended complaint, he has not demonstrated good cause for not requesting another extension of time prior to the court's second deadline.

For the foregoing reasons, the court concludes that Garcia is not shown that excusable neglect or any other reason justifies relief from judgment in this case.

IT IS THEREFORE ORDERED that plaintiff's motion for reconsideration (#11) is DENIED.