Wolff v. California

• Decision Date: 22 February 2017
• Docket Number: Case No. ED CV 15–00244–VBF
• Citation: 236 F.Supp.3d 1154
• Parties: Herbert WOLFF, Plaintiff, v. State of CALIFORNIA et al., Defendants.
• Court: U.S. District Court — Central District of California

236 F.Supp.3d 1154

Herbert WOLFF, Plaintiff,

v.State of CALIFORNIA et al., Defendants.

Case No. ED CV 15–00244–VBF

United States District Court, C.D. California.

Signed February 22, 2017

Herbert Wolff, Chino, CA, pro se.

ORDER

Dismissing Plaintiff's F.R.C.P. 60(b) Motion for Relief from Judgment With Prejudice As Late and Barred by Failure to Appeal

Valerie Baker Fairbank, Senior United States District Judge

This was a civil-rights action under 42 U.S.C. section 1983. For the reasons that follow, the Court will dismiss plaintiff's Fed. R. Civ. P. 60(b) motion for relief from judgment with prejudice.

Proceeding pro se , California state prisoner Herbert Wolff ("plaintiff") initiated this action on February 9, 2015, by filing a complaint (Doc 1), along with a motion for appointment of counsel (Doc 2) and a request to proceed in forma pauperis ("IFP") (Doc 3). On February 11, 2015, District Judge Lew issued an Order (Doc 5) denying the IFP application with leave to amend within thirty days, and Magistrate Judge Sagar issued an Order (Doc 6) denying without prejudice the motion for appointment of counsel. The case was randomly reassigned to the undersigned District Judge by Order entered March 4, 2015 (Doc 7).

On April 23, 2015, Magistrate Judge Sagar issued an Order (Doc 8) dismissing the complaint without prejudice, authorizing plaintiff to amend his pleading within thirty days. That deadline elapsed on about May 23, 2015. More than two months later, still having received no amended complaint and no motion to extend the amendment deadline, the Magistrate Judge on August 3, 2015 issued an Order (Doc 10) directing plaintiff to show cause in writing, by September 2, 2015, why this action should not be dismissed with prejudice for lack of prosecution and failure to comply with court order.

Nearly two months after the show-cause deadline elapsed, the Court had not received from plaintiff either a substantive response or a request to extend the show-cause deadline. Accordingly, on October 28, 2015, the Magistrate Judge issued a Report and Recommendation ("R & R") (Doc 12) recommending that the action be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b) for lack of prosecution and failure to comply with court orders.

In response, plaintiff filed a document entitled "Objections to the Magistrate Judge's R & R" on November 18, 2015 (Doc 13). On November 19, 2015, the Magistrate Judge issued an Order (Doc 14) that construed the "Objections" as a request for more time to file an amended complaint; thus construed, the Magistrate Judge granted the request and directed plaintiff to file an amended complaint that rectified the deficiencies identified in the original complaint by December 21, 2015. The R & R and its recommendation of dismissal with prejudice for lack of prosecution remained pending.

Even after being granted this second extension of time in which to file a First Amended Complaint, the December 21, 2015 deadline came and went with no submissions by plaintiff.

On Monday, January 11, 2016, the Clerk's Office received a Request for Extension of Time from plaintiff in an envelope that had been postmarked by a United States Post Office in Santa Ana, California on Tuesday, January 6, 2016. See Doc 15–1 at 4. Although the envelope was not postmarked until Tuesday, January 6, 2016, plaintiff dated his extension request (Doc 15–1 at 1) and supporting declaration (Doc 15–1 at 2) "December 20, 2015" and attached a "California Institution for Men Proof of Service by Mail" (Doc 15–1 at 3) alleging that he had given the envelope to prison staff for mailing two and a half weeks (seventeen days) before it was postmarked, on Wednesday, December 20, 2015. Yet at the bottom of the Proof of Service form, in the concluding section entitled "CIM Mailroom Acknowledgment of Mailing", all three lines were blank (a line entitled "Dated", a line apparently for the printed name of a prison employee entitled "Staff", and a line apparently for the employee's signature entitled "Signed").

On January 7, 2016, the Magistrate forwarded the R & R to the undersigned District Judge for ruling. See CM/ECF Docket, non-text "court-only" entry between Docs 14 and 15.

MAGISTRATE'S DETERMINATION THAT PLAINTIFF DID NOT REQUEST EXTENSION OF AMENDMENT TIME BEFORE EXISTING AMENDMENT DEADLINE

On January 12, 2016, the Magistrate issued a Notice of Document Discrepancies (Form CV–104A) (Doc 15) rejecting the extension application for filing. The Notice stated as follows, "FAC was due 12/21/15 ... and no requests for extension were filed prior to [the] due date. His matter is under submission, and the Court will no longer accept any filings."

Plaintiff did not appeal to the undersigned District Judge from the Magistrate's January 12, 2016 order finding that his extension application was filed after the December 21, 2015 amendment deadline.See 28 U.S.C. section 636(b)(1)(A) ("A [district] judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.") and Fed. R. Civ. P. 72(a) —Magistrate Judges: Pretrial Order—Nondispositive Matters ("When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. * * * A district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law.").

Because plaintiff Wolff was incarcerated and proceeding pro se when he attempted to file the request for extension of time in December 2015—January 2016, he was entitled to the benefit of the Prison Mailbox Rule.See Sudduth v. Soto , No. LA CV 15–09038–VBF Doc. 28 at 5 (C.D. Cal. Sept. 20, 2016) (not yet on WestLaw).

Under that rule, the Court was presumptively obligated to treat his extension request as constructively filed on the date on which plaintiff alleges he gave it to prison authorities.See Quezada v. Long , 2016 WL 4063013, *3 n.2 (C.D. Cal. July 6, 2016) (citing Hernandez v. Spearman , 764 F.3d 1071, 1074 (9th Cir. 2014) (citing Houston v. Lack , 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) )); see, e.g., United States v. Canfield , 2016 WL 4926419, *1 (D. Minn. Sept. 15, 2016) ("To take advantage of this rule," the incarcerated party "must have ‘actually deposited his legal papers' by his deadline and 'at some point attested to that fact in an affidavit or notarized statement.") (quoting Grady v. United States , 269 F.3d 913, 918 (8th Cir. 2001) ) (brackets omitted).

"The Rule of Houston thus excludes from the time to file a [document] any time lost to delays caused by prison authorities in transmitting the pro se prisoner's [document] to the district court", Baker v. United States , 670 F.3d 448, 457 (3d Cir. 2012), whether the delay was caused by prison staff conducting security screening, by staff or postal employees temporarily misplacing the envelope, or by any other factor beyond the prisoner's control. See, e.g., Williams v. Davis , 2015 WL 493807, *1 (N.D. Cal. Feb. 4, 2015) ("The petition has no proof of service but does have a verification sheet dated December 11, 2013. The petition came to the Court in an envelope postmarked December 20, 2013, was stamped ‘received’ on December 24, 2013, and was stamped ‘filed’ on January 3, 2014. Applying the prison mailbox ... rule, the Court assumes ... Williams gave his petition to prison officials for mailing on the date he signed it, and deems the petition to have been filed as of December 11, 2013."). " ‘It is generally contrary to the Prison Mailbox Rule to use a later date—such as the date the U.S. Postal Service postmarked the envelope or the date the Court Clerk's Office stamped the envelope ‘received’—as an incarcerated pro se party's filing date.' " Bautista v. Hatton , 2016 WL 6137405, *5 n.2 (C.D. Cal. Oct. 19, 2016) (citation omitted).

Nonetheless, a court need not treat a document as filed on the date it was purportedly submitted to prison staff for mailing, when the gap between that date and the postmark date is so long that the claimed submission date appears implausible. If the prisoner alleges that he gave a document to staff for mailing on a certain date and the envelope was not postmarked by the Post Office until weeks later, the Court might reasonably conclude—absent evidence to the contrary beyond the prisoner's mere assertion, such as a prison outgoing-mail log—that the prisoner submitted the document for mailing later than he claimed he did.

Here, Wolff alleges that he gave the extension request to staff for mailing seventeen days before the Post Office postmarked it. But this Court need not make any finding as to the date on which plaintiff actually tendered the extension request to prison staff—which goes to the merits of his Rule 60(b) motion—because the motion must be dismissed on non-merits grounds as discussed below.

On January 13, 2016, this Court issued an Order (Doc 16) adopting the R & R and dismissing the action with prejudice for lack of prosecution and failure to comply with court order. See Wolff v. State of California , No. ED CV 15–00244–VBF Doc. 16, ––– F.Supp.3d ––––, 2016 WL 183642 (C.D. Cal. Jan. 13, 2016). On the same date, this Court entered final judgment in favor of the defendants and against plaintiff Wolff. See Wolff , No. ED CV 15–00244–VBF Doc. 17, 2016 WL 183642. Plaintiff did not file a Fed. R. Civ. P. 59(e) motion for reconsideration in this Court within the time allotted for doing so, nor did he notice an appeal to the United States Court of Appeals for the Ninth Circuit within the time allotted for doing so.

PLAINTIFF WOLFF'S CURRENT MOTION FOR RELIEF FROM JUDGMENT

On February 6, 2017,...