Opinion
Case No. 2:05-cv-1041.
July 5, 2006
OPINION AND ORDER
Plaintiff, Daniel L. Rittner, Sr., a state prisoner, filed this action under 42 U.S.C. § 1983 alleging, inter alia, a denial of his right of access to the courts, denial of medical care, and retaliation for filing grievances. This case was dismissed without prejudice on May 24, 2006. On May 25, 2006, Mr. Rittner has filed a Motion to Toll Time for Purposes of Refiling. After reviewing the motion, the Court concludes that this is a motion to reconsider and will review it under Fed.R.Civ.P. 59(e) and 60. For the following reasons, Mr. Rittner's motion is denied.
I.
Mr. Rittner's motion states (reproduced verbatim):
Now Comes the Plaintiff, Pro se, who moves the Court for an order to toll time to refile the complaint herein.
Plaintiff states that the tolling provision is requested due to exceptional circumstances which include, 1. reported theft of money from inmated account of Plaintiff in December 2003 which prevented his access to this Court, 2. and adequate law library was not available or persons trained in the law to assist in the filing sub judice. Theis was denied to hime while incarcerated in the county facility from January 6, 2004 to January 6, 2005 (sic). Bounds v. Smith, 97 S.Ct. 1491 (1977) "access to court."
Furthermore, 3. Plaintiff was forced to pursue appellate re-view of his criminal conviction since January 6, 2005 with an income of available spending of $10 or less each month. Souder v. McGuire, 516 F.2d 820, 840 (3rd Cir. 1975) citined by Gluth v. Kangis, 951 F.2d 1504, 1508 (9th Cir. 1991).
"The uncontroverted facts show that it costs at least $46 to purchase necessary personal items and legal supplies . . ."
Souder, supra was held over 30 years ago.
This circuit hold inmates should not be forced to choose between personal hygiene and accessing the court, Carver v. Bunch, 946 F.2d 451, 452 (6th Cir. 1991) over 25 yearg ago.
The report of the aforementioned theft was a direct result of Defendant's acts and omissions described in original complaint sub judice.
Furthermore, Defendants have shown deliberate indifference to the discovery process of the pro se litigant which caused irraparable harm. Counsel for Defendants refuse to provide discovery as so moved by Plaintiff.
The pleadings of the pro se litigant failed to properly detail the fact that he had ONLY sought to litigate the merits of ONE grievance which was exhausted pursuant to 42 U.S.C. 1997e. That is the complaint of forced segregation in ratailation for the filing of grievances and exercising his access to the courts as proscribed by the First U.S. Const. Amend.
Furthermore, Plaintiff has spent less then $6 in hygiene since July 2003 and been denied medical care for serious medical needs since that date where he is forced to choose between purchase of hygiene items, seeking medical care for serious medical needs over accessing the courts, Farmer v. Brennen, 114 S.Ct. 2052 (1984). "deliberate indifference."
For the following reasons the tolling provisions should be granted to the Plaintiff who also attaches a declaration pursuant to 28 U.S.C. § 1746.
(Motion to Toll time for Purpose of Refiling at pp. 1-2.)
II.
Fed.R.Civ.P. 59(e) states that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." A court may grant a motion to amend or alter a judgment "if there is (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice." GenCorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
Further, the relief available under Fed.R.Civ.P. 60(b) "is extraordinary and may be granted only upon a showing of exceptional circumstances." Stotts v. Memphis Fire Dept., 679 F.2d 541, 562 (6th Cir. 1982), rev'd on other grounds, 467 U.S. 561 (1984). Whether to grant Rule 60(b) relief is within the district court's discretion. Marshall v. Monroe Sons, Inc., 615 F.2d 1156, 1160 (6th Cir. 1980); Williams v. Arn, 654 F.Supp. 241, 246 (N.D.Ohio 1987). A party seeking relief under Rule 60(b) is required to show that its case comes within the provisions of the rule. Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993). Rule 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of judgment.
In the instant case, Mr. Rittner failed to demonstrate grounds for relief under Rules 59(e) or 60(b). First, this Court concludes that Mr. Rittner has not argued or proven error in the Court's legal analysis in the Opinion and Order dismissing the case; nor has Mr. Rittner cited the existence of an intervening change in the controlling law. Further, Mr. Rittner has not proffered any newly discovered evidence that may bolster his arguments. Finally, Mr. Rittner's arguments do not meet the situations where courts alter or amend a judgment to prevent manifest injustice. See, e.g., Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90-91 n. 3 (1st Cir. 1993) ("Rule 59(e) motions are granted for reasons such as the commission by the trial court of a manifest error of law or fact, the discovery of new evidence, or an intervening change in the law"); accord GenCorp, Inc. v. American International Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); see also Hawkes v. Internal Revenue Service, 467 F.2d 787 (6 th Cir. 1972); Davis by Davis v. Jellico Community Hosp., Inc., 912 F.2d 129 (6th Cir. 1990).
Second, Mr. Rittner has not argued for relief under any of the grounds annunciated in Rule 60(b)(1)-(5). Accordingly, the only remaining option would be to grant relief to Mr. Rittner based on Rule 60(b)(6), and this Court declines to exercise its discretion in doing so. Mr. Rittner's motion appears to state the same allegations that were previously dismissed without prejudice for failing to comply with the "total exhaustion rule." Without any additional proof that Mr. Rittner has exhausted all of the claims stated in the complaint, Mr. Rittner's motion is denied.
III.
Mr. Rittner's Motion to Toll Time for Purposes of Refiling (doc. #60) is DENIED.