Opinion
2:06-cv-1437-GEB-CMK-P.
August 30, 2007
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion filed on August 1, 2007, in which he seeks relief from the judgment entered in this action on July 24, 2007. The court construes plaintiff's motion as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).
On July 24, 2007, the court adopted the magistrate judge's May 25, 2007, findings and recommendations which concluded that this action should be dismissed, without leave to amend, for failure to state a claim upon which relief could be granted. Specifically, the court agreed with the magistrate judge that the only two named defendants — High Desert State Prison and the California Department of Corrections and Rehabilitation — were immune from suit under the Eleventh Amendment and that this defect was not subject to further amendment. In the instant motion for relief from judgment, plaintiff states that he never received the May 25, 2007, findings and recommendations and, as a result, never had a chance to file objections. Plaintiff seeks an opportunity to file objections.
Plaintiff had been granted leave to amend on January 19, 2007, after the court advised plaintiff of the same defect and suggested that plaintiff not name immune defendants in an amended complaint.
Plaintiff has not shown good cause for relief from judgment. First, the docket reflects that plaintiff has received other orders from the court. Specifically, plaintiff clearly received the court's January 19, 2007, order given that he requested an extension of time to file an amended complaint. Further, he also must have received the order granting an extension of time given that plaintiff filed a first amended complaint as directed. Second, no objections from plaintiff would change the fact that the only defendants named in this action are immune from suit. Plaintiff was given a chance to cure this defect and failed to do so. Because the dismissal was not with prejudice, plaintiff is not prejudiced in that he can file a new action which names defendants who are not immune.
Plaintiff is referred to Federal Rule of Appellate Procedure 4(a)(4)(A) with respect to his appeal rights after denial of a Rule 60(b) motion.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for relief from judgment under Rule 60(b) is denied.