Opinion
ORDER
KIMBERLY J. MUELLER, District Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On April 29, 2014, the magistrate judge recommended dismissal of this case under Rule 41(b) of the Federal Rules of Civil Procedure and Local Rules 110 and 183(b), because plaintiff failed to obey the court's orders and prosecute the action after defendant filed a motion to dismiss. ECF No. 22. Neither party objected to the recommendation. On June 5, 2014, this court adopted the recommendation in full and entered judgment. ECF Nos. 23, 24. Six months later, plaintiff filed a "motion for reinstatement of case and [permission] to file amended petition, " which the court construes as a motion for relief from judgment pursuant to Rule 60(b). ECF No. 25. Defendant opposed the motion, and plaintiff filed a reply. ECF Nos. 28, 29. For the reasons stated below, plaintiff's motion is denied.
Rule 60(b) provides:
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). In his motion, plaintiff asserts that he failed to respond to defendant's motion to dismiss or to object to the magistrate judge's recommendation of dismissal because of his "confinement in ad-seg, " and his transfers between Folsom State Prison and the California Men's Colony. Plaintiff offers no evidence to support this assertion, which is flatly contradicted by the declaration of H. Cervantes, the Litigation Coordinator at the California Men's Colony, which was filed with defendant's opposition. ECF No. 28-1. Cervantes submits a copy of plaintiff's "bed assignment, " which shows that plaintiff remained housed in general population at the California Men's Colony from the date that defendant filed his motion to dismiss on January 27, 2014, until the date that this case was closed, on June 5, 2014. See id. ¶ 2, Ex. A. Defendants have also presented evidence that plaintiff received mail from this court on several dates during the relevant time period. See id. ¶ 3, Ex. B. In his reply brief, ECF No. 29, plaintiff fails to address defendant's evidence or otherwise clarify his argument for relief from judgment.
Plaintiff has not shown that his failure to respond to the motion to dismiss or the recommended dismissal of this action was the result of excusable neglect, nor has he shown any other reason that would warrant relief from the judgment entered herein. Accordingly, IT IS HEREBY ORDERED that plaintiff's "motion for reinstatement of case and [permission] to file amended petition, " ECF No. 25, is construed as a motion for relief from judgment pursuant to Rule 60(b) and, so construed, is denied.