1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ROBERT McCULLOCK, Case No.: 19-CV-2110-DMS

10 Plaintiff,

ORDER REVIEWING AND

11 v. DECLINING TO CONSTRUE

PLAINTIFF’S OBJECTION AS A

12 N. SCHARR, Sgt.; et al.,

MOTION TO ALTER OR SEEK

13 Defendants. RELIEF FROM JUDGMENT 14 15 This case is currently before the Court for review of Plaintiff’s Objection to 16 Judgment and Notice of Appeal to the Ninth Circuit (ECF No. 55), to determine whether 17 it constitutes a motion covered by Federal Rule of Appellate Procedure 4(a)(4). For the 18 foregoing reasons, the Court finds that Plaintiff’s filing does not constitute a motion under 19 Rule 4(a)(4) and, in the alternative, if the filing is construed as a motion, Plaintiff does not 20 meet the standard for reconsideration of or relief from judgment under the Federal Rules 21 of Civil Procedure 59(e) or 60. 22 I. 23 BACKGROUND 24 Robert McCullock (“Plaintiff” or “Mr. McCullock”) is a prisoner currently 25 incarcerated at the California Mens Colony located in San Luis Obispo, California. 26 Proceeding pro se and in forma pauperis (“IFP”), he brought a civil action pursuant to 42 27 U.S.C. § 1983 alleging Richard J. Donovan Correctional Facility (“RJD”) prison officials 28 violated his Eighth Amendment rights when they failed to protect him from an attack by 1 another inmate. (ECF No. 1 at 4-6.) On December 3, 2019, the Court granted Plaintiff 2 leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) and screened his Complaint before 3 service as required by 28 U.S.C. § 1915(e)(2) and § 1915A(b), further dismissing one 4 Defendant sua sponte. (ECF No. 6.) 5 Defendants filed an Answer on February 18, 2020 (ECF No. 22) and then a Motion 6 for Summary Judgment on February 12, 2021. (ECF No. 35.) The Court notified Plaintiff 7 of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 8 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) 9 and set a briefing schedule. (ECF No. 36.) Plaintiff filed his Opposition on April 2, 2021 10 (ECF No. 40) and Defendants filed their Reply on April 2, 2021. (ECF No. 41.) The Court 11 took Defendants’ Motion for Summary Judgment under submission for resolution on the 12 papers pursuant to S.D. CAL. CIVLR 7.1.d, and ultimately granted the motion, entering 13 final judgment on July 17, 2021. (ECF No. 52.) The Court found that Plaintiff failed to 14 provide specific factual allegations or evidence to support his claims. (See id.) 15 On July 27, 2021, Plaintiff-appellant timely filed both a notice of appeal and an 16 “objection to judgment.” (ECF Nos. 54, 55.) On October 22, 2021, the Ninth Circuit 17 issued an order noting that Plaintiff-appellant’s filing may be a request for consideration 18 that would constitute one of the motions listed in Federal Rule of Appellate Procedure 19 4(a)(4). (ECF No. 59.) The Ninth Circuit stayed its review of Plaintiff’s appeal pending 20 the District Court's consideration of whether Plaintiff-appellant’s filing constituted a 21 motion covered by Rule 4(a)(4). (Id.) 22 II. 23 LEGAL STANDARD 24 Federal Rule of Appellate Procedure 4(a)(4) covers the effect of a motion on a notice 25 of appeal, and states in pertinent part that: 26 If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules— 27 the time to file an appeal runs for all parties from the entry of the order disposing 28 of the last such remaining motion 1 (iv) to alter or amend the judgment under Rule 59; … (v) for relief under Rule 60 if the motion is filed no later than 28 days after the 2 judgment is entered. 3 Fed. R. App. P. 4. 4 Federal Rule of Civil Procedure 59(e) states that “A motion to alter or amend a 5 judgment must be filed no later than 28 days after the entry of the judgment.” “A Rule 6 59(e) motion may be granted if ‘(1) the district court is presented with newly discovered 7 evidence, (2) the district court committed clear error or made an initial decision that was 8 manifestly unjust, or (3) there is an intervening change in controlling law.’” Ybarra v. 9 McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City of Oakland, 255 10 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a substantive change of mind 11 by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) (quoting Miller v. 12 Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)), and “is an extraordinary 13 remedy which should be used sparingly.” McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 14 (9th Cir. 1999). Rule 59(e) may not be used to “‘relitigate old matters, or to raise arguments 15 or present evidence that could have been raised prior to the entry of judgment.’” Stevo 16 Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112, 1117 (D. Nev. 2013) (quoting 11 17 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)); see 18 also Campion v. Old Repub. Home Protection Co., Inc., No. 09-cv-00748-JMA(NLS), 19 2011 WL 1935967, at *1 (S.D. Cal. May 20, 2011) (“A motion for reconsideration may 20 not be used to get a second bite at the apple.”). 21 Federal Rule of Civil Procedure 60 covers relief from judgments or orders, and 22 states in 60(b) that a court may relieve a party or its legal representative from a final 23 judgment, order, or proceeding for: 24 “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 25 evidence that, with reasonable diligence, could not have been discovered in time 26 to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has 27 been satisfied, released, or discharged; it is based on an earlier judgment that has 28 1 been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.” 2

3 Fed. R. Civ. P. 60(b). The “catchall provision” in 60(b)(6) applies only when the reason 4 for granting relief is not covered by any of the other reasons enumerated in Rule 60. 5 United States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005), overruled on other 6 grounds by United States v. Washington, 593 F.3d 790 (9th Cir. 2010). It “has been 7 used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized 8 only where extraordinary circumstances prevented a party from taking timely action to 9 prevent or correct an erroneous judgment.” Id. (internal quotation marks omitted). 10 III. 11 DISCUSSION 12 A. Plaintiff-appellant’s filing does not constitute a motion under Federal Rule of 13 Appellate Procedure 4(a)(4) 14 While Plaintiff-appellant Mr. McCullock’s filing includes numerous grounds for the 15 basis of his objection to the ruling, none constitute a motion to alter or amend the judgment. 16 Rather, they appear to be the reasons that he seeks an appeal. First, Mr. McCullock notes 17 he “was not allowed to participate at trial.” (ECF No. 55 at 1.) However, the summary 18 judgment motion was properly decided under submission on the papers, per Local Rule 19 7.1.d, as indicated in the order granting summary judgment. (ECF No. 52 at 2.) As such, 20 there was no hearing in which Mr. McCullock could participate, and the granting of 21 summary judgment prevented the case from proceeding to trial. Mr. McCullock’s 22 disagreement with the valid form of the proceedings in his case does form the basis of a 23 motion to alter or amend the judgment. 24 Second, Mr. McCullock states “There was no motion by defendants attorney but 25 magistrate taking their place.” (ECF No. 55 at 1.) Defendants did properly file their own 26 motion for summary judgment. (ECF No. 35.) Mr. McCullock was notified of the 27 requirements for opposing summary judgment pursuant to Klingele, 849 F.2d 409 and 28 Rand, 154 F.3d 952 (ECF No. 36), and indeed filed an Opposition. (ECF No. 40.) The 1 notice provided to Mr. McCullock also indicated that if the motion for summary judgment 2 was granted, it would “end your case.” (ECF No. 36 at 1.) Thus, this argument is contrary 3 to the record and cannot form the basis of a motion to alter or amend the judgment. 4 Third, Mr. McCullock avers that, during a settlement conference, a Magistrate Judge 5 agreed to stay proceedings pending the implementation of a bill impacting criminal debt. 6 (ECF No. 55 at 1.) While settlement conference proceedings are confidential, and thus the 7 Court will not inquire further into the settlement discussions held in this case, in any event 8 the power to stay a case rests with the District Judge. Reynaga v. Cammisa, 971 F.2d 414, 9 416 (9th Cir. 1992) (holding Magistrate Judge had no authority to stay a case absent the 10 parties' consent on the record for the Magistrate to exercise such authority). No motion to 11 stay was ever made in this case. Thus, this statement again appears contrary to the record 12 and cannot form the basis of a motion to alter or amend the judgment. 13 Finally, Mr. McCullock states he is filing a “notice of appeal, and objection to 14 Judgment.” (ECF No. 55 at 1.) Merely stating an objection, without more detail, does not 15 provide enough information to constitute a motion to alter or seek relief from the judgment. 16 The purpose of Rule 59(e) is not to “give an unhappy litigant one additional chance to sway 17 the judge. [A]rguments and evidence [that] were previously carefully considered by the 18 Court, [ ] do not provide a basis for amending the judgment.” Kilgore v. Colvin, No. 2:12- 19 cv-1792-CKD, 2013 WL 5425313 at *1 (E.D. Cal. Sept. 27, 2013). Thus, a Rule 59(e) 20 motion must have some basis beyond a mere disagreement with the outcome. Similarly, 21 relief under Rule 60 can only be granted on the enumerated grounds or an articulation of 22 another “reason that justifies relief,” none of which are offered in Mr. McCullock’s filing. 23 Fed. R. Civ. P. 60(b)(6). 24 As Mr. McCullock’s objection to the judgment provides no information on the 25 grounds on which he seeks to alter, amend, or seek relief from the judgment, it is not 26 appropriately construed as a motion under Federal Rule of Appellate Procedure 4(a)(4), 27 but rather remains only a timely-filed appeal of this Court’s decision. 28 / / / 1 B. Even construing the objection as a Rule 59(e) or Rule 60 motion, Plaintiff- appellant does not meet the standards for relief 2 In the alternative, even if the Court construes Mr. McCullock’s language of 3 “objection to judgment” as a Rule 59(e) or Rule 60 motion, there are no grounds on which 4 to alter or seek relief from the judgment in this case. 5 1. Rule 59(e) 6 7 Mr. McCullock has not pointed to, and the Court is not aware of, (1) newly 8 discovered evidence, (2) clear error or manifest injustice by the Court, or (3) an intervening 9 change in controlling law. See Ybarra v. McDaniel, 656 F.3d at 998 (9th Cir. 2011). The 10 Court is cognizant of the harm Mr. McCullock suffered when attacked by another inmate, 11 and of the challenges in proceeding pro se. However, the Court’s granting of summary 12 judgment was based on the lack of evidence provided by Plaintiff, in accordance with the 13 standards of Federal Rule of Civil Procedure 56. An “objection” to the Court’s ruling 14 without further argument is not enough to create “a substantive change of mind by the 15 court,” Tripati, 845 F.2d at 206 n.1, which warrants the “extraordinary remedy” of granting 16 a Rule 59(e) motion. McDowell, 197 F.3d at 1254 n.1. Thus, even if the Court construes 17 Mr. McCullock’s filing as a Rule 59(e) motion, the Court has no grounds on which to grant 18 it. 19 2. Rule 60 20 Mr. McCullock has not pointed to, and the Courts is not aware of, any (1) mistake, 21 or excusable neglect, (2) newly discovered evidence, or (3) fraud or misconduct by an 22 opposing party. Fed. R. Civ. P. 60(b). The judgment is also not (4) void, nor has it (5) 23 been satisfied or discharged, id., and Mr. McCullock does not point to (6) any other reason 24 that justifies the rare use of “an equitable remedy to prevent manifest injustice.” United 25 States v. Washington, 394 F.3d at 1157. Thus, even if Mr. McCullock’s objection is 26 construed as a motion for relief from judgment, it must be denied. 27 / / / 28 / / / 1 IV. 2 CONCLUSION 3 For the reasons set out above, Plaintiff-appellant’s objection to judgment does not 4 constitute a motion covered by Federal Rule of Appellate Procedure 4(a)(4). Even if the 5 || objection is construed as a motion under Federal Rule of Civil Procedure 59(e) or 60, the 6 || Plaintiff-appellant has not articulated any grounds that would allow this Court to grant such 7 relief. 8 IT IS SO ORDERED. 9 Dated: February 5, 2022 » g J 10 an Yn. i Hon. Dana M. Sabraw, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28