(PC) Dunigan v. CDCR

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA KEVIN DUNIGAN, No. 2:19-cv-2501 WBS AC P Plaintiff, v. ORDER CDCR, et al., Defendants.

By order filed March 26, 2020, this action was dismissed, ECF No. 22, and judgment was entered the same day, ECF No. 23. On May 13, 2021,1 plaintiff filed a petition for writ of error coram nobis which the court construes as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).2 ECF No. 33.

Rule 60 of the Federal Rules of Civil Procedure provides that the court may grant relief from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); Since plaintiff is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988).

Federal Rule of Civil Procedure 60(e) expressly abolished the writ of coram nobis and the petition also references Federal Rule of Civil Procedure 60(b)(2). (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; ° (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). The rule further provides that “[a] motion under Rule 60(b) must be made g || within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).

Plaintiff appears to seek relief under Rule 60(b)(2), ECF No. 33 at 1, which makes the motion untimely. Furthermore, the motion is incomprehensible and fails to identify grounds for relief under any provision of Rule 60(b).

Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for relief from judgment, ECF No. 33, is denied.

Dated: May 28, 2021 dh ble aK. fid..t€-—- WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE Duni2501.850