Opinion
No. CIV S-08-0774-GEB-CMK-P.
October 15, 2008
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 complaint (Doc. 1).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). Plaintiff titled the pleading he filed in this case as a "complaint." As plaintiff titled this pleading as a complaint, the court filed it as a new action. However, upon screening, the court has discovered it is a recitation of his claims raised in case number 05cv0280, plus "new evidence" he alleges he now has to support those claims.
Final judgement was entered in case number 05cv0280 on March 20, 2007, based on a motion for summary judgment. Because the motion for summary judgment was granted, that case was resolved on the merits of plaintiff's claims. This new "complaint" plaintiff has filed, and which was the basis for opening this case as a new action, is really a Rule 60(b)(2) motion, under the Federal Rules of Civil Procedure, challenging the judgment in his old case, 05cv0280, based on plaintiff's "new evidence."
This pleading should have been filed in case number 05cv0280 and not filed as a new action. The Clerk of the Court will be directed to take this "complaint" and file it in case number 05cv0280 as a Rule 60(b)(2) motion. As no new action should have opened, the court will vacate the order granting plaintiff leave to proceed in forma pauperis as well as the payment order.
Accordingly, IT IS HEREBY ORDERED that
1. The Clerk of the Court is directed to file the "complaint," Document 1 on the docket in this matter, in case number 05cv0280 as a motion under Federal Rule of Civil Procedure 60(b), deemed filed as of April 11, 2008;
2. The order granting plaintiff leave to proceed in forma pauperis and the order directing payment of the filing fee, Documents 6 and 7 on the docket in this matter, are vacated;
3. The Clerk of the Court is directed to serve a copy of this order on the California Department of Corrections and Rehabilitation;
4. The Clerk of the Court is directed to serve a copy of this order on the Financial Department of the court;
5. The Financial Department is directed to apply any payment received from plaintiff's trust account in this matter to the filing fee in case number 05cv0280; and
6. The Clerk of the Court is directed to administratively close this case.