1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || KEITH RUSSEL LUCKETT, Case No. 20cv932-MMA-JLB 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 vs. MOTION TO VACATE UNDER 14 FEDERAL RULE OF CIVIL PROCEDURE 60(b) 15 || A. SUDBURY, et al., 16 Defendants.| [Doc. No. 13] 17 18 Procedural History 19 On May 18, 2020, Plaintiff Keith Russel Luckett, an inmate currently incarcerated 20 at Salinas Valley State Prison, initiated this civil rights action pursuant to

||1983. See Doc. No. 1. Upon initial screening, the Court dismissed Plaintiff's complaint 22 || for failing to state a claim pursuant to

(e)(2) and § 1915A(b)(1). See 23 || Doc. No. 3. Specifically, the Court noted that Plaintiff's claims were untimely and 24 || explained that Plaintiff had failed to allege facts sufficient to demonstrate equitable 25 || tolling of the statutory limitations period. See id. at 7-8. The Court set forth the standard 26 || for equitable tolling, including the necessary conditions, and granted Plaintiff leave to file 27 ||an amended complaint in order to correct the deficiencies of pleading identified in the 28 ||Court’s Order. See id. at 8.

1 Thereafter, Plaintiff filed a First Amended Complaint (“FAC”). See Doc. No. 5. 2 || The Court conducted the requisite sua sponte screening of Plaintiff's FAC and 3 || determined, inter alia, that Plaintiff once again failed to plead sufficient facts to support a 4 || plausible claim for equitable tolling. See Doc. No. 6 at 7-8. The Court further 5 || determined that “[b]ecause Plaintiff has already been provided a short and plain statement 6 || of his pleading deficiencies, as well as an opportunity to amend those claims to no avail, 7 ||the Court finds granting further leave to amend would be futile.” Jd. at 8. The Court 8 || dismissed the action and the Clerk of Court entered judgment accordingly. See Doc. No. 9 10 Plaintiff filed a tumely Notice of Appeal. See Doc. No. 8. Several days later he 11 || filed a second Notice of Appeal. See Doc. No. 9. On August 25, 2020, the United States 12 ||Court of Appeals for the Ninth Circuit docketed Plaintiff's appeal and issued a briefing 13 |}schedule. See Doc. Nos. 10, 11. Several weeks later, Plaintiff filed a motion in this 14 || Court seeking relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). 15 || See Doc. No. 13. 16 Discussion 17 Plaintiff moves for relief from judgment pursuant to Federal Rule of Civil 18 || Procedure 60(b)(1) which provides, in pertinent part, that “the court may relieve a party 19 or its legal representative from a final judgment, order, or proceeding for . . . mistake, 20 || inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Once a district 21 || court is divested of jurisdiction through appeal of a final judgment, it lacks the power to 22 || grant a motion brought pursuant to Rule 60(b) without a remand from the court of 23 ||appeals. See Davis v. Yageo Corp.,

(9th Cir. 2007). However, Federal 24 || Rule of Civil Procedure 62.1 provides that “[i]f a timely motion is made for relief that the 25 || court lacks authority to grant because of an appeal that has been docketed and is pending, 26 || the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either 27 it would grant the motion if the court of appeals remands for that purpose or that the 28 || motion raises a substantial issue.” Fed. R. Civ. P. 62.1. Accordingly, the Court may

1 || consider Plaintiff's motion within these parameters. 2 Here, Plaintiff has not shown “excusable neglect” justifying relief from the Court’s 3 ||}order and judgment. Plaintiff simply repeats his previous allegations regarding his 4 || misunderstanding of the statute of limitations for filing this action which the Court 5 determined insufficient. See Maraziti v. Thorpe,

(9th Cir. 1995) 6 || (district court properly denied Rule 60(b) motion because movant “merely reiterated the 7 || arguments that he had already presented to the district court’). Plaintiff also appears to 8 || state additional facts to support a claim that he was diligent in pursuing his legal remedies 9 ||in support of a claim of equitable tolling. However, motions for reconsideration may not 10 used as a vehicle for raising new arguments or allegations that could have been raised 11 ||previously. See Rosenfeld v. U.S. Dep’t of Justice,

(9th Cir. 1995) 12 ||(“The district court did not abuse its discretion in declining to consider an argument 13 ||raised for the first time on reconsideration without a good excuse.”). When drafting his 14 FAC, Plaintiff had the benefit of the Court’s full analysis regarding the statute of 15 || limitations issue and Plaintiff's burden to plead facts in support of a claim of entitlement 16 || to equitable tolling. See Doc. No. 3 at 7-8. The time to state any such factual allegations 17 || was then not now. Moreover, a motion for relief from judgment may not be used as a 18 || vehicle to re-litigate old matters, raise new arguments, or present evidence that could 19 ||have been raised prior to entry of the judgment. See Exxon Shipping Co. v. Baker, 544 20 || U.S. 471, 486-87 (2008); see also Kona Enters., Inc. v. Estate of Bishop,

, 21 (9th Cir. 2000). 22 Conclusion 23 Based on the foregoing, the Court DENIES Plaintiff's motion. 24 IT IS SO ORDERED. 25 Dated: October 23, 2020 Ja THs Ly □□□ □ 26 Hon. MICHAEL M. ANELLO 07 United States District Judge 28 3 ee