(PC) Harris v. Restivo

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DEVONTE B. HARRIS, No. 1:20-cv-00797-NONE-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 13 v. (Doc. No. 17) A. RESTIVO, et al., 15 Defendants.

17 Plaintiff Devonte Harris is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 25, 2021, the undersigned adopted the magistrate judge’s findings and recommendations, ordering that “[t]his case proceed on Plaintiff’s retaliation claims against defendants Levan and Restivo; Plaintiff’s section 1983 malicious prosecution claims against defendants Levan and Restivo; and Plaintiff’s Devereaux claims against defendants Levan, Reynolds, and Restivo,” and that “[a]ll other claims and defendants be dismissed.” (Doc. No. 14 at 4.)

24 On February 19, 2021, plaintiff filed a motion for reconsideration of the order adopting the findings and recommendations, arguing that the court erred in dismissing claims four, thirteen, fourteen, fifteen, sixteen, and seventeen as time barred. (Doc. No. 17 at 1.) Specifically, plaintiff argues that the court failed to “account for the additional consecutive tolling of two years plaintiff receives as a legal disability for his incarceration on a term less than life under Cal. Code | Civ. Proc. § 352.1.” (Ud. at 4-5.) Furthermore, plaintiff contends that he is “entitled to 6 months | and 8 days, and at least 6 months and 20 days, respectively, in equitable tolling while he | exhausted his administrative remedies.” (/d. at 6.)

4 Under Federal Rule of Civil Procedure 60(b), 5 [o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the 6 following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 7 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called 8 intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been 9 satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no 10 longer equitable; or (6) any other reason that justifies relief.

11 | Fed. R. Civ. P. 60(b). Plaintiff “must demonstrate both injury and circumstances beyond his | control that prevented him from proceeding with the action in a proper fashion.” Harvest v. | Castro, 531 F.3d 737, 749 (9th Cir. 2008) (citation and internal quotation marks omitted).

14 | Additionally, Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest | injustice and is to be utilized only where extraordinary circumstances prevented a party from | taking timely action to prevent or correct an erroneous judgment.” /d. (citation and internal || quotation marks omitted).

18 Plaintiff asserts he is entitled to additional statutory and equitable tolling of the applicable | statute of limitations. Absent a more specific showing and without more, plaintiff has failed to | demonstrate that the court erred in finding his claims time-barred or that any of the Rule 60(b) || requirements are met. Accordingly, plaintiff's motion for reconsideration (Doc. No. 17) is | DENIED.

23 | IT IS SO ORDERED. ~ □ Dated: _ March 12, 2021 Hoe | aor 25 UNITED STATES DISTRICT JUDGE