Opinion
CV 18-1015-PHX-JAT (MHB)
09-28-2021
Benjamin Freeman, Plaintiff, v. State of Arizona, et al., Defendants.
ORDER
James A. Teilborg, Senior United States District Judge
Plaintiff Benjamin Freeman, who is currently confined in the Arizona State Prison Complex-Florence, brought this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 39.) In an August 2, 2021 Order, the Court granted summary judgment in favor of Defendants based on Plaintiff's failure to properly exhaust available administrative remedies and directed the Clerk of the Court to enter Judgment. (Doc. 111.) The Clerk of the Court entered Judgment the next day. (Doc. 112.)
Pending before the Court are Plaintiff's Motion for Reconsideration (Doc. 114) and Plaintiff's Motion for Entry of Judgment (Doc. 115). After Plaintiff filed these Motions, he filed a Notice of Appeal to the Ninth Circuit Court of Appeals (Doc. 116).
I. Plaintiff's Motion for Reconsideration
As an initial matter, Plaintiff's Notice of Appeal does not divest the Court of jurisdiction to consider Plaintiff's Motion to the extent it was filed pursuant to Rules 59(e) or 60 of the Federal Rules of Civil Procedure. See Fed. R. App. P. 4(a)(4)(B)(i) (“If a party files a notice of appeal after the court announces or enters a judgment-but before it disposes of any motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.”).
Rule 60(b), which sets forth the grounds for relief from judgment, “provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) ‘extraordinary circumstances' which would justify relief.” School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted). The moving party bears the burden of proving the existence of a basis for Rule 60(b) relief. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988). Although the moving party's factual allegations are to be accepted as true, mere legal conclusions, general denials, or simple assertions are insufficient to justify overturning the underlying judgment. Id.
“[A] party merits relief under Rule 60(b)(6) if he demonstrates ‘extraordinary circumstances which prevented or rendered him unable to prosecute his case.” Cmty. Dental Servs. v. Tani, 2823d 1164, 1168 (9th Cir. 2002). To show extraordinary circumstances, the party must “demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the prosecution or defense of the action in a proper fashion.” Id.
Moreover, “[a] Rule 59(e) motion should not be granted ‘unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'” McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc)).
In his Motion for Reconsideration, Plaintiff argues that the Court did not consider Plaintiff's evidence that “he exhausted his available administrative remedies as to his claims against Lopez, Reyes and Keefe on December 5, 2017 when he submitted his appeals to the Director and that he was prevented from exhaustion of the Grievance Appeals d[ue] to Frisbee's departure . . . from Manzanita Unit.” (Doc. 114 at 1-2.)
Contrary to Plaintiff's contentions, the Court addressed these arguments, which Plaintiff made in response to the Motion for Summary Judgment, and despite consideration of the arguments, did not find that Plaintiff demonstrated that had exhausted his available administrative remedies or that his administrative remedies were effectively unavailable to him as to his claims against Lopez, Reyes and Keefe. (See Doc. 111 at 11-12.) Plaintiff's disagreement with the Court's Order is not a proper basis for reconsideration. Accordingly, Plaintiff's Motion for Reconsideration will be denied.
II. Motion for Entry of Judgment
In his Motion for Entry of Judgment, Plaintiff contends that although the Court dismissed his claims without prejudice for failure to properly exhaust available administrative remedies, the Clerk's Judgment states that the case is dismissed with prejudice. (Doc. 115.) Plaintiff requests that this clerical error be corrected.
“The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.” Fed.R.Civ.P. 60(a).
Plaintiff's Motion will be granted and the Court will direct the Clerk of the Court to amend the Judgment to reflect that Plaintiff's claims and this action were dismissed without prejudice for failure to properly exhaust available administrative remedies.
Although Rule 60(a) requires that the Court seek leave of the appellate court to correct a clerical error, because Plaintiff's Notice of Appeal is not yet effective, the Court may correct the clerical error without first seeking leave. See Fed. R. App. P. 4(a)(4)(B)(i).
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Reconsideration (Doc. 114) and Plaintiff's Motion for Entry of Judgment (Doc. 115).
(2) Plaintiffs Motion for Reconsideration (Doc. 114) is denied.
(3) Plaintiffs Motion for Entry of Judgment (Doc. 115) is granted as follows: the Clerk of the Court must amend the Judgment (Doc. 116) to reflect that Plaintiffs claims and this action were dismissed without prejudice for failure to properly exhaust available administrative remedies.