Opinion
Civil Action 20-cv-01337-WJM-KLM
01-23-2023
JOSHUA GALLEGOS, Plaintiff, v. SCOTT DAUGHENBACH Individual & Official, MAJOR MOORE Individual & Official CAPTAIN HICKS Individual & Official, DEAN WILLIAMS Official, and OFFENDER SERVICES MOVE COMMITTEE Defendants to be determined through discovery Official, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Plaintiff's Motion to Re-Open Case and Hearing [#64] (the “Motion”) and Plaintiff's proposed (Second) Amended Prisoner Complaint [#65]. Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.L.CivR 72.1(c), the Motion [#64] has been referred to the undersigned for a recommendation regarding disposition. [#66]. The Court has reviewed the Motion [#64], the Response [#75], the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons stated below, the Court recommends that the Motion [#64] be denied.
“[#64]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
I. Introduction
By way of background, Plaintiff, who is proceeding pro se in this matter, brought suit in this case pursuant to 42 U.S.C. § 1983, alleging a violation of the Eighth Amendment in connection with unsafe living conditions at the Fremont Correctional Facility (“FCF”) and Defendants' failure to protect him from an inmate who sexually assaulted him. Plaintiff sued Defendants in both their official and individual capacities seeking injunctive relief and money damages. See Am. Compl. [#24]. Defendants filed a Motion to Dismiss [#40] on December 7, 2020, and Plaintiff did not file a Response.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
A Recommendation of United States Magistrate Judge [#58] (“Recommendation”) was issued on June 1, 2021, recommending that the Motion to Dismiss [#40] be granted and that the case be dismissed. Despite being advised of his right to file objections, Plaintiff did not file any objections to the Recommendation [#58]. By Order [#60] of June 28, 2021, District Judge William J. Martinez adopted the Recommendation [#58] and dismissed the case. As to the official capacity claims, the claims for money damages against Defendants Daughenbach, Hicks, and Moore were dismissed without prejudice under the Eleventh Amendment, and the claim for injunctive relief was dismissed without prejudice as moot. Recommendation [#58] at 11-15, 18; Order [#60] at 2. The Eighth Amendment claims were dismissed with prejudice because Plaintiff's allegations demonstrated that prison officials reasonably responded to threats to Plaintiff's safety when he was placed in protective custody and transferred out of FCF, entitling Defendants to qualified immunity. Recommendation [#58] at 15, 17-18; Order [#60] at 2.
On December 8, 2021, Plaintiff filed a Motion for Hearing on the Merits [#62] (“Motion for Hearing”), which was denied as moot by District Judge William J. Martinez. Order [#63]. Judge Martinez stated in that Order [#63] that Final Judgment had been entered and the case is closed. Id. The Motion for Hearing [#62] also sought to reopen the case and relied on the same issues addressed by Plaintiff in his current Motion [#64]. The instant Motion [#64], however, attaches an Affidavit and other materials that provide further support for Plaintiff's request to reopen the case.
II. Analysis
Plaintiff asserts as grounds for the Motion [#64] that he was paroled in February 2021, and did not receive the Recommendation [#58] or Order [#60] until December 2021. Motion [#64] at 4. Plaintiff further asserts that he suffered “an atypical hardship” after being paroled on February 8, 2021 (Motion [#64] at 1), and submits an Affidavit [#64-1] detailing the hardship that Plaintiff endured. Plaintiff asserts that the parole was possibly an attempt by Defendant to “frustrate, and shipwreck his non-frivolous legal claim” (id. at 1-2), although he does not explain this. Id. Finally, the Motion [#64] states that Plaintiff has “an extreme liberty interest in regards to having the case re-opened.” Id. at 2.
As further grounds for the Motion [#64], the Affidavit submitted by Plaintiff avers that when he was released on parole in February 2021, he was not provided his “Legal Box” which contained all of Plaintiff's legal documents. Id. at 1. Plaintiff also states that he did not receive the Order [#60] dismissing the case until December 2021 (id. at 3-4). During Plaintiff's parole, he was “chronically homeless[,]” had PTSD, and his mental status “rapidly deteriorat[ed]” until he was committed to the hospital for trying to kill himself. Id. at 2. Plaintiff was also unable to do any legal research because the public libraries were closed due to COVID-19. Id. In addition, Plaintiff avers that he was arrested and convicted of a misdemeanor for missing an appointment to register as a sex-offender, for which he was sentenced to 60 days and his parole was revoked. Id. at 3. According to Plaintiff, he forgot about the registration appointment because he was “overwhelmed” due to his mother being on a ventilator in the hospital. Id. Plaintiff avers that he is now settled in his permanent facility, where he received the Order [#60] dismissing the case. Id. at 4.
Plaintiff's mother passed away in December, 2021. Id.
Turning to the analysis, the Court first reiterates Judge Martinez's findings in his Order [#63] denying Plaintiff's previous Motion for Hearing [#62]. The case is closed and final judgment has entered. Moreover, the Court finds that the grounds articulated by Plaintiff for reopening the case do not provide a valid basis for relief. Because the Motion [#64] was filed more than ten days after judgment, the Court construes the Motion [#64] as a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); see also Dickey v. Hagman, No. 12-cv-02364, 2013 WL 646660, *1 (D. Colo. Feb. 21, 2013) (liberally construing a pro se inmate's motion to re-open the case as a Rule 60(b) motion). Plaintiff has not articulated any grounds for relief under Rule 60(a) or (b)(1)-(5), such as clerical mistakes or oversights, mistake, inadvertence, surprise, or fraud.
To the extent the Motion [#64] can be interpreted as asserting excusable neglect under Rule 60(b)(1), the Court rejects this as a basis to grant relief. First, while the Court is sympathetic to the hardships Plaintiff has suffered, Plaintiff fails to show excusable neglect where he is the sole cause of his not receiving a copy of this Court's Order [#60] until December 2021. Plaintiff was required to update his address with the Court no later than five days after the change, and did not do so. See D.C.COLO.LCivR 5.1(c). Plaintiff cannot ignore this Court's rules and then claim the consequences of his inaction constitutes excusable neglect, let alone extraordinary circumstances. See Jamison v. Smith's Food and Drug Centers, Inc., 279 Fed.Appx. 723, 726 (10th Cir. 2008) (finding it unpersuasive that plaintiff failed to timely object to magistrate judge recommendation when she provided contact information in the form of a post office box that she only checked twice a month, and stating, “[b]ecause the responsibility for Ms. Jamison's failure to discover that she had received the magistrate [judge's] reports rests squarely with her, we cannot conclude that the interests of justice require us to overlook her waiver[ ]”); Kobel v. Lansing Correctional Facility, 577 Fed.Appx. 844, 845 (10th Cir. 2014) (finding no extraordinary circumstances where plaintiff claims he never received warning his complaint may be dismissed when nothing prevented plaintiff from apprising district court of his new location or inquiring about the status of his lawsuit). Second, the circumstances described by Plaintiff do not change the substance of the lawsuit, which this Court has already found legally insufficient to state a claim for relief, as discussed in more detail below. Plaintiff cannot use the Motion [#64] as a vehicle to relitigate his claims that have been dismissed.
Accordingly, the Court turns to Rule 60(b)(6), which authorizes relief from a Judgment or Order “for any other reason that justifies relief.” Rule 60(b)(6) has been described by the Tenth Circuit as a “‘grand reservoir of equitable power to do justice in a particular case.'” Van Skiver, 952 F.2d at 1244 (quotation omitted). However, relief under Rule 60(b)(6) is warranted only in exceptional circumstances and only when necessary to accomplish justice.” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 579 (10th Cir.1996). Extraordinary circumstances have been found to exist when, after the entry of the judgment, enforcement of the judgment was made inequitable by events not contemplated by the moving party. Id.
While the circumstances outlined by Plaintiff in his Motion [#64] and Affidavit [#64-1] are unfortunate, Plaintiff has not shown why enforcement of the judgment would be inequitable. The Court assumes that Plaintiff must now have had time to do the legal research he contends he could not do earlier, especially given the filing of the Amended Prisoner Complaint [#65]. The Motion [#64] does not allege any facially obvious errors of law or fact that were made in the Recommendation [#58] or Order [#60]. Moreover, Plaintiff does not contest that he timely received Defendants' Motion to Dismiss [#40], and that he did not respond to it. While Plaintiff did assert in his earlier Motion for Hearing [#62] that he was “mentally unable” to respond to the Motion to Dismiss (id. at 2), Plaintiff did not seek any relief from the Court as to that issue, such as an extension of time to respond. Nor has Plaintiff provided any detail as to why he was “mentally unable” at that time (as compared to when he was placed on parole) to respond to the Motion to Dismiss [#40]. The Court finds that this does not constitute the type of exceptional circumstances that would justify reopening the case under Rule 60(b)(6).
Furthermore, it appears that reopening the case and accepting Plaintiff's Second Amended Complaint [#65] would not cure the deficiencies noted in the Recommendation and Order, and would thus be futile. See LaFleur v. Teen Help, 342 F.3d 1145, 1154 (10th Cir. 2003) (finding that relief was not warranted under Rule 60(b)(6) when amendment would be futile). The Second Amended Complaint [#65] that Plaintiff has submitted with his Motion [#64] asserts only a claim under the Eighth Amendment against Defendants in their individual capacities. The Recommendation [#58] as to the First Amended Complaint found as to the individual capacity claims that while “[a] prisoner has a right to be reasonably protected from constant threats of violence and sexual assaults from other inmates” (id. at 15), the allegations demonstrated that prison officials responded reasonably to the threat in order to ensure Plaintiff's reasonable safety. Id. at 16-17. This was because Defendants transferred Plaintiff into protective custody and out of the facility he was in, and Plaintiff did not allege that the dangerous conditions persisted after this transfer. Id. Accordingly, the Court found that the claim for deliberate indifference under the Eighth Amendment was subject to dismissal. Id. (citing, e.g., Carter v. Padilla, 54 Fed.Appx. 292, 294 (10th Cir. 2002) (no deliberate indifference where, following an assault by a fellow inmate, plaintiff was placed in administrative segregation at his own request, demonstrating that prison officials showed “some concern for [plaintiff's] safety”). Again, the Recommendation [#58] was affirmed and adopted by Judge Martinez. Order [#60]. The Court's review of the proposed Second Amended Complaint [#65] shows that it does not address the basis of the dismissal of the Eighth Amendment claim referenced above, or present facts from which the Court could find a different result.
Finally, the Court notes that a Rule 60(b) motion cannot substitute for timely appeal of an order. Cashner, 98 F.3d at 576 (citing Morris v. Adams-Millis Corp., 758 F.2d 1352, 1356-67 (10th Cir. 1985). Plaintiff failed to timely appeal the Recommendation [#58] or Final Judgment [#61].
Based on the foregoing, IT IS HEREBY RECOMMENDED that the Motion to Reopen [#64] be DENIED.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).