1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, No. 1: 18-cv-01565-DAD-JLT 12 Plaintiff,

ORDER GRANTING MOTION FOR

13 v. RECONSIDERATION, VACATING ORDER

ADOPTING FINDINGS AND

14 AGOSTINI, et al., RECOMMENDATIONS AND JUDGMENT

ENTERED ON AUGUST 2, 2019, AND

15 Defendants. PERMITTING PLAINTIFF TO FILE

OBJECTIONS WITHIN TWENTY-ONE DAYS

16

(Doc. No. 11) 17

18 Plaintiff Pedro Rodriguez is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. 20 On April 29, 2019, the assigned magistrate judge issued an order to show cause why the 21 case should not be dismissed due to plaintiff’s failure to exhaust his administrative remedies prior 22 to filing suit as required. (Doc. No. 7.) The order to show cause was mailed to plaintiff’s address 23 of record but was returned to the court by the U.S. Postal Service as undeliverable. Plaintiff did 24 not respond to the order to show cause within the fourteen days allotted and the assigned 25 magistrate judge subsequently issued findings and recommendations on May 24, 2019 26 recommending dismissal due to plaintiff’s failure to exhaust his administrative remedies. (Doc. 27 No. 8 at 1.) 28 ///// 1 On August 2, 2019, this court issued an order adopting the findings and recommendations 2 and dismissing this action. (Doc. No. 9.) At the time the findings and recommendations were 3 adopted, plaintiff had not filed objections thereto, and the period to file objections had passed. 4 (Id. at 2.) 5 On August 14, 2019, plaintiff filed a motion to vacate the court’s dismissal order on 6 grounds of lack of notice, stating that he did not receive any of the court’s orders and 7 independently learned of the dismissal of this action on or about August 10, 2019. (Doc. No. 11 8 at 1.) Plaintiff contends that the lack of notice was “a result of factors beyond Petitioner’s 9 control” including the U.S. Post Office and/or Valley State Prison’s failure to forward notices 10 from the court to plaintiff at the address he provided. (Id.) Plaintiff also states in his motion that 11 he was unable to communicate with the court because his legal property was confiscated by 12 prison officials due to safety concerns. (Id. at 2.) Plaintiff’s present motion to vacate dismissal is 13 based on Rule 60(b)(6) of the Federal Rules of Civil Procedure. (Id. at 1.) As such, the court 14 construes plaintiff’s notice as a motion for reconsideration and a request to file objections to the 15 findings and recommendations. 16 Rule 60(b) provides that “[o]n motion and upon such terms as are just, the court may 17 relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) 18 mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief 19 from the operation of judgment.” Relief under Rule 60 “is to be used sparingly as an equitable 20 remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances 21 . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and 22 citation omitted) (addressing reconsideration under Rules 60(b)(1)-(6)). The moving party “must 23 demonstrate both injury and circumstances beyond his control . . ..” Id. (internal quotation marks 24 and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that plaintiff show 25 “what new or different facts or circumstances are claimed to exist which did not exist or were not 26 shown” previously, “what other grounds exist for the motion,” and “why the facts or 27 circumstances were not shown” at the time the substance of the order which is objected to was 28 considered. 1 “A motion for reconsideration should not be granted, absent highly unusual 2 circumstances, unless the district court is presented with newly discovered evidence, committed 3 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 4 raise arguments or present evidence for the first time when they could reasonably have been 5 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 6 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 7 original). 8 Based on plaintiff’s representation that he did not receive any of the court’s orders and out 9 of an abundance of caution and in the interest of justice, the court will vacate the judgment and 10 grant plaintiff an opportunity to file objections to the findings and recommendations issued on 11 May 24, 2019.1 See Luna v. Vasquez, No. CV F 05-1228 LJO DLB HC, 2008 WL 345868, at *1 12 (E.D. Cal. Feb. 6, 2008) (vacating judgment, because petitioner informed the court that he never 13 received a copy of the findings and recommendations, and permitting petitioner an opportunity to 14 object); Kentz v. Ellis, No. CV F 06-0166 AWI SMS HC, 2008 WL 2421632, at *1 (E.D. Cal. 15 June 13, 2008) (same); Nguyen v. Giurbino, No. 05CV2287 WQH (WMC), 2007 WL 3407364, at 16 *2 (S.D. Cal. Nov. 14, 2007) (granting Rule 60(b) motion, because petitioner contended that he 17 never received a copy of the report and recommendation and therefore had no opportunity to file 18 objections, and permitting petitioner an opportunity to object). 19 Accordingly, 20 1. The court’s order, adopting findings and recommendations and dismissing the 21 action, issued on August 2, 2019 (Doc. No. 9) is vacated; 22 ///// 23 1 The findings and recommendations were served by mail at plaintiff’s address of record on May 24 24, 2019 and were not returned to the court as undeliverable. However, the docket reflects that 25 the order to show cause, served by mail on April 29, 2019, was returned as undeliverable because plaintiff was “[o]ut to Court 5/15-16, 5/20-22.” Because the findings and recommendations were 26 issued and served two days after plaintiff was “out to court,” it is likely that plaintiff did not receive a copy of the court’s order due to circumstances out of his control and therefore did not 27 have an opportunity to file objections. However, plaintiff is also cautioned that if he were to be transferred during the course of this litigation, it is his obligation to keep the court apprised of his 28 1 2. Within twenty-one (14) days from the date of service of this order, plaintiff may 2 file objections? to the findings and recommendations (Doc. No. 8); and, 3 3. Failure to file timely objections will result in a final order adopting the findings 4 and recommendations and dismissing this action. 5

IT IS SO ORDERED.

6 ys ) /f) /) 2) 7 Dated: _ October 3, 2019 fee | oe

UNITED STATES DISTRICT JUDGE

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 |—§_ — SA > In his objections, plaintiff is directed to address if he has exhausted his administrative remedies 27 | regarding his action pursuant to the Eighth Amendment, which stems from the alleged removal of 28 his cane, request for medical shoes, and suspension of his pain management medication. (See Doc. Nos. 1, 7.)