Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY VASQUEZ, Case No.: 25-CV-1978 JLS (SBC) CDCR #T-12357, 12 ORDER GRANTING MOTION TO Plaintiff, 13 VACATE vs. 14

RAMIREZ, FLORES, RODRIGUEZ, 15 ESPITIA,

16 Defendants. (ECF No. 8) 17 18 19 Presently before the Court is Plaintiff Anthony Vasquez’s, a state prisoner 20 proceeding pro se, Motion to Vacate Judgment (“Mot.,” ECF No. 8). Plaintiff initiated this 21 case on July 29, 2025, when he filed a civil rights complaint pursuant to 42 U.S.C. § 1983. 22 See ECF No. 1. On October 27, 2025, the Court granted Plaintiff leave to proceed in forma 23 pauperis but dismissed the complaint for failure to state a claim pursuant to 28 U.S.C. §§ 24 1915(e)(2) and 1915A(b)(1). See ECF No. 5. The dismissal was without prejudice and 25 with leave to file an amended pleading no later than December 26, 2025. See id. at 10. In 26 the same order, the Court warned Plaintiff that if he failed to timely amend, the Court would 27 dismiss this action for failure to state a claim and failure to prosecute. Id. (citing Lira v. 28 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 1 the opportunity to fix his complaint, a district court may convert the dismissal of the 2 complaint into dismissal of the entire action.”)). 3 When Plaintiff failed to file any response to the dismissal, the Court dismissed the 4 action for failure to prosecute and failure to state a claim on February 10, 2026, and entered 5 judgment on February 11, 2026. See ECF Nos. 6, 7. In the meantime, however, Plaintiff’s 6 Motion was stamped “received” by the Clerk of Court on February 9, 2026, but not 7 docketed until February 17, 2026. See ECF No. 8. 8 MOTION TO VACATE JUDGMENT 9 Plaintiff’s Motion includes requests to vacate the judgment pursuant to Federal Rule 10 of Civil Procedure 59(e) and for relief from judgment pursuant to Federal Rule of Civil 11 Procedure 60(b). See id. at 1, 17. A motion to alter or amend a judgment is construed 12 under Rule 59(e) if it is filed within 28 days of entry of judgment; otherwise, it is considered 13 under Rule 60(b) as a motion for relief from a judgment or order. See Am. Ironworks & 14 Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898‒99 (9th Cir. 2001). Because 15 Plaintiff’s Motion was filed before final judgment was entered, the Court construes the 16 Motion under Federal Rule of Civil Procedure 60(b). 17 A party may move the Court for relief from judgment under Rule 60(b) on the 18 following grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 19 discovered evidence that, with reasonable diligence, could not have been discovered in 20 time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or misconduct 21 by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, 22 released, or discharged, or it is based on an earlier judgment that has been reversed or 23 vacated, or applying it prospectively is no longer equitable; or (6) any other reason 24 justifying relief. Fed. R. Civ. P. 60(b). 25 Here, Plaintiff’s Motion was stamped received on February 9, 2026, the day before 26 the case was dismissed for failure to prosecute, but the Motion was not docketed until 27 several days later, on February 17, 2026. See Mot. In his Motion, Plaintiff states he did 28 not receive the Court’s dismissal order until the “holidays” and because of subsequent 1 ||lockdowns, he was unable to timely respond. /d. at 19. After receiving assistance from 2 || another inmate in mid-January, Plaintiff “immediately began formulating a response to the 3 || dismissal.” Jd. at 20. The Court notes that because Plaintiff is proceeding pro se, had the 4 || Motion been docketed the day it was stamped received (a day before this Court issued its 5 || final dismissal order), this Court would have liberally construed the filing as a request for 6 || an extension of time to file an amended pleading and granted it. Thus, given these unique 7 || circumstances and in the interest of justice, the Court GRANTS the Motion, VACATES 8 ||the judgment, REOPENS the case, and GRANTS Plaintiff leave to file an amended 9 ||complaint no later than July 12, 2026. See Fed. R. Civ. P. 60(b)(6); Pena v. Seguros La 10 || Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985) (“Whenever it is reasonably possible, 11 || cases should be decided upon their merits.”’). 12 Plaintiff is again cautioned that the amended complaint must be complete in itself. 13 S.D. CAL. CIVLR 15.1; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 14 (stating claims which are not re-alleged in an amended pleading may be “considered 15 || waived if not repled”). Failure to file an amended pleading on or before the above deadline 16 ||may result in the Court dismissing the action for failure to state a claim and failure to 17 || prosecute. See Lira, 427 F.3d at 1169. 18 CONCLUSION 19 Accordingly, the Court GRANTS Plaintiff's Motion (ECF No. 8), VACATES the 20 || judgment entered on February 11, 2026 (ECF Nos. 6, 7), DIRECTS the Clerk of Court to 21 ||reopen the case, and GRANTS Plaintiff leave to file an amended complaint no later than 22 |) July 12, 2026. 23 IT IS SO ORDERED. 24 || Dated: May 26, 2026 . &£ .

26 United States District Judge 27 28 3 oe □□