(PC) Ballard v. Wong, et al, No. 2:2012cv02226 - Document 44 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 03/30/18 RECOMMENDING that plaintiff's motion for relief under Rule 60(a) 41 be granted to reflect that plaintiff was convicted under 18 USC 2423 (b). Motion for relief 41 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(PC) Ballard v. Wong, et al Doc. 44 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN MARVIN BALLARD, 12 13 14 15 No. 2:12-CV-2226-JAM-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS WONG, et al., et al., Defendants. 16 / 17 Plaintiff, a prisoner proceeding pro se, brought this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court in this closed case is plaintiff’s “Motion to Correct 19 Errors” (Doc. 41). 20 On July 6, 2015, defendants moved to dismiss this action. See Doc. 26. On April 21 6, 2016, the court issued findings and recommendations addressing defendants’ motion and 22 recommended that it be granted and that this action be dismissed without leave to amend. See 23 Doc. 33. Plaintiff filed timely objections to the findings and recommendations on April 21, 24 2016, see Doc. 34, defendants filed a response to plaintiff’s objections on April 29, 2016, see 25 Doc. 35, and plaintiff filed a reply to defendants’ response on May 12, 2016, see Doc. 36. In his 26 April 21, 2016, objections, plaintiff also sought “relief from judgment denying injunction.” 1 Dockets.Justia.com 1 Plaintiff also filed a “Supplemental Memorandum” objecting to the findings and 2 recommendations on May 27, 2016. See Doc. 37. On August 25, 2016, the District Judge 3 adopted the findings in recommendations in full and directed that judgment be entered. See Doc. 4 38. Judgement was entered the same day and the case was closed. As to plaintiff’s request for 5 “relief from judgment denying injunction,” the District Court stated as follows in the August 25, 6 2016, order: 7 8 9 . . .Plaintiff also filed a motion for relief from judgment denying injunction and a motion to correct errors pursuant to Federal Rule of Civil Procedure 60. This Rule 60 motion is procedurally defective and was not considered by this Court. Plaintiff may re-file his motion after this Order is issued, so that the Magistrate Judge can consider the motion and formally issue findings and recommendations. 10 11 Plaintiff has re-filed his motion and seeks relief pursuant to Federal Rule of Civil 12 Procedure 60(a). In his motion, plaintiff argues that the April 6, 2016, findings and 13 recommendations contain two errors. First, plaintiff claims that the findings and 14 recommendations incorrectly state that he is a “civil detainee being held as a sexually violent 15 predator (SVP).” Second, plaintiff claims the findings and recommendations erroneously state 16 that he was convicted of violating 18 U.S.C. § 2423.F. According to plaintiff, he was convicted 17 of violating 18 U.S.C. § 2423(b). 18 Under Rule 60(a), the court may grant reconsideration of final judgments and any 19 order based on clerical mistakes. Relief under this rule can be granted on the court’s own motion 20 and at any time. See Fed. R. Civ. P. 60(a). However, once an appeal has been filed and 21 docketed, leave of the appellate court is required to correct clerical mistakes while the appeal is 22 pending. See id. 23 As to plaintiff’s first claim, the court finds no clerical error. In the findings and 24 recommendations, the court stated that plaintiff “appears to be a civil detainee held as a sexually 25 violent predator (SVP).” See Doc. 33, page 2, lines 5-6. The court also stated that the United 26 States filed an action seeking to civilly commit plaintiff “as a sexually dangerous person under 2 1 the Adam Walsh Act, 18 U.S.C. § 4248.” Based on the totality of the findings and 2 recommendations, it is clear that plaintiff was charged with being a sexually dangerous person 3 under the Adam Walsh Act. 4 As to plaintiff’s second claim, the court finds that a clerical error did in fact occur 5 and will recommend correcting the error to reflect that plaintiff was convicted under 18 U.S.C. 6 § 2423(b). 7 Based on the foregoing, the undersigned recommends that plaintiff’s motion for 8 relief under Rule 60(a) (Doc. 41) be granted to reflect that plaintiff was convicted under 18 9 U.S.C. § 2423(b). 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court. Responses to objections shall be filed within 14 days after service of 14 objections. Failure to file objections within the specified time may waive the right to appeal. 15 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 17 18 19 DATED: March 30, 2018 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 3