Opinion
No. CIV S-06-0886 FCD KJM P.
October 27, 2008
ORDER
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. On September 3, 2008, this court denied plaintiff's motion for summary judgment, granted defendant's motion for summary judgment, and entered judgment. Plaintiff filed a timely notice of appeal on September 16, 2008. On October 20, 2008, plaintiff filed a motion for relief from judgment under Fed.R.Civ.P. 60(b)(3)
Because the pendency of the appeal in this case has deprived this court of jurisdiction over petitioner's motion, he must first determine whether this court is willing to consider his motion to vacate the judgment and then seek remand from the Court of Appeals. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). He has failed to do so.
The fraud which underlies plaintiff's motion arises out of the discovery proceeding in this case which, plaintiff alleges, were marred by fraudulent misrepresentations. However, it appears that plaintiff would not have prevailed on summary judgment even if he had prevailed on the motion to compel: plaintiff sought discovery to show that defendant Mejia had in fact delayed plaintiff's mail from the courts and from potential counsel. As he conceded during the summary judgment proceedings, however, the delayed mail was related to his Vioxx litigation. Bell Depo. at 20:24-22:5; 24:5-10; 25:2-3. He argues, in essence, that Lewis v. Casey, 518 U.S. 343, 354-55 (1996), was wrongly decided and so the delay in the mail violated his right of access to the court. This court is not willing to entertain this motion.
IT IS THEREFORE ORDERED that plaintiff's motion for relief from judgment is denied.