Opinion
2:19-cv-1874 DB P
03-15-2023
SHAWN DAMON BARTH, Plaintiff, v. EUSEBIO MONTEJO, Defendant.
ORDER
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendant was deliberately indifferent to his medical needs, retaliated against him, and discriminated against him. Presently before the court is plaintiff's request for relief from judgment. (ECF No. 83.) For the reasons set forth below, the undersigned will construe the motion as a motion for reconsideration and deny the motion as premature.
Plaintiff argues that the court should grant him relief pursuant to Federal Rule of 60(a). (ECF No. 83.) Plaintiff alleges that there was “an oversight” because his declaration attached to his opposition was “not mentioned when reciting [the] ‘Disputed Facts' and/or when ascertaining the presence of genuine material facts in dispute.” (Id. at 1.) He further argues that the undersigned erred when omitting information contained in plaintiff's sworn declaration. (Id. at 2.)
Defendant filed an opposition to plaintiff's request for relief from judgment. (ECF No. 85.) Therein, defendant argues that relief under Rule 60(a) is inappropriate because plaintiff has failed to identify a clerical mistake, oversight, or omission, he fails to raise a genuine issue of material fact concerning his retaliation, deliberate indifference, and equal protection claims. (Id.)
Rule 60(a) states the court may correct a mistake “whenever one is found in a judgment, order, or other part of the record.” However, the arguments raised in plaintiff's motion for relief from judgment are better considered along with his objections to the undersigned's findings and recommendations. Accordingly, the undersigned will deny plaintiff's motion without prejudice to its renewal should the district court adopt the undersigned's November 29, 2022, findings and recommendations.
Plaintiff's objections to the November 29, 2022, findings and recommendations were filed on the docket on December 22, 2022. (ECF No. 84.)
For the reasons set forth above, IT IS HEREBY ORDERED that plaintiff's request for relief from the court's November 29, 2022, findings and recommendations (ECF No. 83) is denied without prejudice.