1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REGINALD EDWARD SPEARMAN, No. 2:23-cv-00093-DJC-DMC 12 Plaintiff, 13 v. ORDER

14 RONALD W. HILLBERG, et al.,

15 Defendants. 16

17 Magistrate Judge Dennis M. Cota issued Findings and Recommendations on 18 May 8, 2024, recommending this action be dismissed for failure to prosecute and 19 failure to comply with court rules and orders. (ECF No. 12.) Plaintiff did not file 20 objections or otherwise respond to these Findings and Recommendations. On May 8, 21 2024, this Court signed an Order adopting the Findings and Recommendations of 22 Judge Cota and dismissed this action for failure to prosecute and failure to comply 23 with court rules and orders. (See ECF No. 13.) Plaintiff has now submitted a 24 document entitled “Objection” along with a First Amended Complaint (ECF Nos. 15, 25 16.) The Court construes the document entitled “Objection” as a Motion for Relief 26 from Judgment or Order under Federal Rule of Civil Procedure 60. 27 Rule 60 provides that a party may seek relief for the following reasons “(1) 28 mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence 1 that, with reasonable diligence, could not have been discovered in time to move for a 2 new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), 3 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) 4 the judgment has been satisfied, released, or discharged; it is based on an earlier 5 judgment that has been reversed or vacated; or applying it prospectively is no longer 6 equitable; or (6) any other reason that justifies relief.” Plaintiff appears to request 7 relief based on mistake or excusable neglect. Where a party misses a filing deadline, 8 courts use the four-factor Pioneer test to determine whether it constitutes excusable 9 neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380 (1993); see 10 Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). Under Pioneer, 11 courts consider “[1] the danger of prejudice to the defendant, [2] the length of the 12 delay and its potential impact on judicial proceedings, [3] the reason for the delay, 13 including whether it was within the reasonable control of the plaintiff, and [4] whether 14 the plaintiff acted in good faith.” Id. at 395. This is an equitable test that takes into 15 account “all relevant circumstances surrounding the party's omission.” Id. 16 “[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually 17 constitute ‘excusable’ neglect . . . .” Id. at 392. 18 Applying these factors here, there is some risk of prejudice to the defendant 19 given the passage of time. As the case is not yet passed the screening stage due to 20 the failure to prosecute, defendant may well be unaware of the existence of this suit, 21 and accordingly unable to preserve evidence and witnesses necessary for its defense. 22 The delay caused by the Plaintiff — almost ten months — also weighs in favor of 23 denying the Motion for Relief. As to the third and fourth factors, while there is no 24 indication of bad faith, the Plaintiff only provides a conclusory statement that he was 25 not served the correspondence sent to him, presumably referring to Judge Cota’s 26 Order directing him to file an amended complaint (ECF No. 11), the subsequent 27 Findings and Recommendations in which Judge Cota recommended this action be 28 dismissed (ECF No. 12), and the Order adopting those Findings and 1 | Recommendations and the subsequent Judgment (ECF No. 13, 14). A review of the 2 | docket indicates that all of these documents were properly served on Plaintiff, and 3 | none of them were returned by the U.S. Postal Service. Moreover, even if Plaintiff did 4 | notreceive these documents, this means Plaintiff failed to ascertain the status of his 5 || case for nearly two years since his last filing and over a year from Judge Cota granting 6 | Plaintiff leave to proceed in forma pauperis. Considering the Pioneer factors, the 7 | Court does not believe that granting relief from judgment is appropriate. 8 Even if the Court were inclined to consider the late-filed objections and the First 9 | Amended Complaint, the First Amended Complaint, while difficult to decipher, does 10 | not appear to address the concerns laid out by Judge Cota in his screening order 11 | (ECF No. 10). Accordingly, Plaintiff's Motion for Relief from a Judgment or Order 12 | pursuant to Rule 60 (ECF No. 17) is DENIED. This action shall remain closed and no 13 | further filings in this closed action shall be accepted. 14 15 IT IS SO ORDERED. 16 | Dated: _February 14, 2025 “Daal A CoO □□□□ Hon. Daniel alabretta v7 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28