Opinion
22-cv-05250 EJD (PR)
03-10-2023
JOEL TOLBERT, III, Plaintiff, v. KABU ADODOJABI, Defendant.
ORDER DENYING MOTION TO AMEND JUDGMENT
(Docket No. 8)
EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE
Plaintiff, a state prisoner, filed the instant pro se civil rights action for damages pursuant to 42 U.S.C. § 1983 against District Attorney (“DA”) Kabu Adodojabi of Contra Costa County. Dkt. No. 1. On January 13, 2023, the Court screened the complaint and found Defendant was absolutely immune from liability; the complaint was dismissed . Dkt. No. 6. Judgment was entered the same day. Dkt. No. 7. On March 2, 2023, Plaintiff filed a motion to amend judgment pursuant to Federal Rule of Civil Procedure 59(e). Dkt. No. 8.
Where the court's ruling has resulted in a final judgment or order (e.g., after dismissal or summary judgment motion), a motion for reconsideration may be based either on Rule 59(e) (motion to alter or amend judgment) or Rule 60(b) (motion for relief from judgment) of the Federal Rules of Civil Procedure. See Am. Ironworks & Erectors v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). A motion to alter or amend judgment under Rule 59 must be made no later than twenty-eight days after entry of judgment. See Fed.R.Civ.P. 59(e) (effective Dec. 1, 2009); Classic Concepts, Inc., 716 F.3d at 1286.
Plaintiff's Rule 59(e) motion is untimely. Judgment was entered on January 13, 2023. Dkt. No. 7. Therefore, Plaintiff had until February 10, 2023, to file a timely Rule 59(e) motion. However, Plaintiff's motion indicates the following date in the header: “Filed 2/27/23.” Applying the mailbox rule, Plaintiff's motion is still untimely because it was filed nearly two weeks past the due date. Accordingly, the motion for reconsideration is DENIED as untimely filed. Dkt. No. 12.
Plaintiff may proceed with an appeal of this matter to the Ninth Circuit.
This order terminates Docket No. 8.
IT IS SO ORDERED.