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Perez v. Peters

United States District Court, D. Oregon

February 20, 2018

ERNIE JUNIOR PEREZ, Plaintiff,
v.
COLETTE PETERS, MICHAEL GOWER, BRAD CAIN, MARK NOOTH, CAPTAIN KYLE, CAPTAIN JOST, FRANK SERRANO, JOE CAPPS, AMY ATCHISON, and JOHN JANE DOE, Defendants.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Incarcerated plaintiff pro se Ernie Junior Perez filed this action against defendants Colette Peters, Michael Gower, Brad Cain, Mark Nooth, Captain Kyle, Captain Jost, Frank Serrano, Joe Capps, Amy Atchison, and John (Jane) Doe on November 21, 2016. Perez amended his complaint effective March 10, 2017. In his amended complaint, Perez alleges that he received disproportionate discipline at the penal institution in which he is housed for his involvement in multiple fistfights, and further alleges that the conditions in the segregated housing unit to which he was sent for disciplinary purposes were substandard. Arising out of the foregoing, Perez alleges (1) the liability of defendants Peters, Gower, Cain, Nooth, Serrano, Capps, and Atchison under 42 U.S.C. § 1983 for the violation of Perez's Fourteenth Amendment procedural due process rights, (2) the liability of defendants Peters, Gower, Cain, Nooth, Kyle, and Jost under Section 1983 for the violation of Perez's First Amendment free speech rights, (3) all Defendants' liability under Section 1983 for the violation of Perez's Eighth Amendment right to freedom from cruel and unusual punishment, and (4) the liability of defendants Peters, Gower, Cain, Nooth, Kyle, and Jost under Article I, Section 20 of the Oregon Constitution for violation of Preez's right to equal protection under the law. The Court has federal question jurisdiction over Perez's federal claims pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental jurisdiction over Perez's Oregon constitutional claim pursuant to 28 U.S.C. § 1367.

         On August 8, 2017, Judge Papak issued Findings and Recommendation (“F&R”) (ECF 30) recommending that Perez's Oregon constitutional claim be dismissed with prejudice. On September 18, 2017, this Court entered an Order (“September Order”) (ECF 35) adopting Judge Papak's recommendation without modification, although supplementing Judge Papak's analysis to address new arguments raised by Perez in his objections to the F&R.

         Before the Court is Perez's motion for relief from the Court's dismissal of Perez's Oregon constitutional claim. For the reasons set forth below, Perez's motion is denied.

         LEGAL STANDARD

         Although Perez styles his motion as under Federal Civil Procedure Rule 59(e) and requests that the Court alter its “judgment” dismissing Perez's Oregon constitutional claim, no judgment has been entered in this case. Accordingly, the Court construes Perez's motion as seeking relief pursuant to Rule 60 of the Federal Rules of Civil Procedure from the Court's September Order. Rule 60 provides, in relevant part, as follows:

(b) On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding 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);
(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). Subsection (6) includes “‘extraordinary circumstances' which would justify relief.'” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), quoting Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). Perez's sole argument for relief is that the Court's Order dated September 18, 2017, was ...


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