Opinion
Civil Action 19-cv-00555-CMA-KLM
07-14-2021
ALEXANDER GARCIA, also known as Alexander Noel Garcia, Plaintiff, v. DEPUTY HEFNER - ACDF, DEPUTY TITUS - ACDF Housing, DEPUTY JOHN DOE - ACDF, DEPUTY YNIGUEZ - ACDF, DEPUTY MOHR - ACDF, and DEPUTY TITUS - ACDF Medical, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
Kristen L. Mix, United States Magistrate Judge
This matter is before the Court on numerous motions filed by Plaintiff, including: the Motion for Relief from Judgement, Motion to Vacate or Set Aside, Pursuant to FRCP 60; and Set Schedule [#79] (the “Rule 60(b) Motion”); the Application to Proceed in District Court Without Prepaying Fees or Costs [#80] (the “Application to Proceed”); the Motion for Appointment of Counsel [#81]; the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 [#82] (the “Motion to Proceed”); the Motion Concerning Motion to Vacate Order [#84] (the “Motion for Status”); the Motion Concerning Status [#86] (the “Second Motion for Status”); the Proposed Order for Judgment [#88] (the “First Motion for Judgment”), which is a motion but is mistakenly titled as an order; the Motion for Judgment [#89] (the “Second Motion for Judgment”); and the Unopposed Motion Pursuant to C.R.C.P. 60(b)(3) for Fraud and Motion for Sanctions [#90] (the “Second Rule 60(b) Motion”). Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.L.CivR 72.1(c), the Motions have been referred to the undersigned for disposition. [#83, #87, #91].
“[#79]” 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.
The Court has reviewed the Motions, the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, it is respectfully recommended that the Rule 60(b) Motions [#79, #90] and the Motions for Judgment [#88, #89] be denied. Based on that recommendation, it is further recommended that the Application to Proceed [#80]; the Motion for Appointment of Counsel [#81], and the Motion to Proceed [#82] be denied for want of jurisdiction. Finally, the First and Second Motions for Status [#84, #86] are denied as moot given this Order and Recommendation of United States Magistrate Judge.
I. Background
This case was originally commenced by Plaintiff, a pro se prisoner, in February 25, 2019. An Order to Show Cause [#71] was issued on November 11, 2020, in connection with Defendants' Motion to Dismiss for Failure to Prosecute [#70]. Plaintiff was ordered to show cause by November 29, 2020, why the case should not be dismissed pursuant to Fed. R. Civ. P 41(b) for failure to prosecute in connection with Plaintiff's failures to respond to Defendants' written discovery requests and requests for a date for his deposition. Order to Show Cause [#71] at 1. The Court indicated that these actions “indicated a lack of intent to prosecute the case.” Id. Plaintiff was advised that the failure to timely respond to the Order to Show Cause [#70] would result in a recommendation to dismiss the case. Id. When Plaintiff failed to respond to the Order to Show Cause, District Judge Christine M. Arguello issued an Order of Dismissal for Failure to Prosecute [#74] on December 2, 2020. The Final Judgment [#75] was issued the same day.
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).
Thereafter, on March 25, 2021, Plaintiff filed a Motion to File Without Prepayment of Filing Fee and Supporting Affidavit [#77]. That Motion [#77] was denied for lack of jurisdiction by Judge Arguello. Plaintiff then filed the Motions at issue.
II. Analysis
A. Rule 60(b) Motions and Motions for Judgment
Plaintiff's First Rule 60(b) Motion [#79] asks the Court to vacate or set aside the Judgment in this case on the basis of excusable neglect. Id. at 1. Plaintiff further asserts that the granting of the Order to Show Cause was erroneous and “appears to have been made under bad faith by defense counsel and may be tantamount [to] fraud....” Id. at 2. In that regard, Plaintiff asserts that he called and emailed defense counsel about the date he was to meet with counsel, i.e., to seek clarification about the upcoming scheduled deadline, particularly in light of the confusion caused by COVID-19 . Id. at 3-4. Plaintiff states that he advised defense counsel that he did not have “the deposition/discovery questions” that were previously sent to him, and asked that a copy be sent. Id. at 4. He further stated that he did not have the address where he was asked to meet with defense counsel, asked that the date be rescheduled if he was unable to meet with them, or asked that he be allowed to pay an attorney or send another person as his agent. Id. at 4. Plaintiff then acknowledged in the Motion [#79] that he missed the deadline to meet, and states that he never agree or confirmed the appointment, but complains that defense counsel refused to send the questions to him after being made aware that he was out of town. Id. at 5. Further, Plaintiff questions whether a deposition is permitted in light of the pandemic, and avers that he has demonstrated a good faith effort to prosecute this case. Id. at 2-3, 5.
The two Motions for Judgment [#88, #89], which reference Rule 60(b) as well as other rules, and the Second Rule 60(b) Motion [#90], further allege fraud on the part of defense counsel and seek a default judgment in Plaintiff's favor on the basis that Defendants “failed to defend allegations against them.” First Motion for Judgment [#88] at 1. Plaintiff asserts that Defendant committed fraud by misleading the Court to believe that Plaintiff abandoned his claims and failed to prosecute his action. Id. Plaintiff states that he was out of town due to contractual obligations, was restricted from travel due to COVID-19, and that he contacted Defendants to attempt to establish an alternative motion to be deposed or obtain a set of questions. Id. Defense counsel did not get back to Plaintiff in a timely basis, according to Plaintiff, and Defendants “actively pursued the fraud on the courts by filing a misleading motion to dismiss for lack of prosecution, only 5 days after” the deadline and while in contact with Plaintiff. Second Motion for Judgment [#89] at 1. The Motion to Dismiss for Failure to Prosecute [#96] was misleading, according to Plaintiff, because it did not inform the Court that Plaintiff had requested that a copy of the discovery questions be sent to him and that he be accommodated regarding his requests regarding his deposition scheduling. Id. Plaintiff argues that the “Intentional Fraud” by Defendants has biased and prejudiced Plaintiff's constitutional rights to redress the court, have a jury trial, and call witnesses, id. at 2, and Plaintiff seeks sanctions against the Defendants. See Second Rule 60(b) Motion [#90]. As the Motions for Judgment refer to Rule 60(b), the Court will address them under that rule.
Turning to the Court's analysis, Rule 60(b) states that “[o]n motion and just terms, the court may relief a party . . . from a final judgment” based on “mistake, inadvertence, surprise, or excusable neglect[, ]'” “fraud, . . . misrepresentation, or misconduct by an opposing party[, ]” “or any other reason that justifies relief.” Relief under Rule 60(b) is “extraordinary and may only be granted in exceptional circumstances.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). As this Court has noted, “parties seeking relief under Rule 60(b) have a high hurdle to overcome[, ]” as such relief “is appropriate when circumstances are so ‘unusual or compelling' that extraordinary relief is warranted or when it ‘offends justice' to deny such relief.” Johnson v. Ward, No. 20-cv-00447-PAB-MEH, 2021 WL 2222713, at *1.
The Court finds that Plaintiff does not show exceptional circumstances that warrant relief under Rule 60(b). While Plaintiff refers to fraud on the part of Defendants as well as excusable neglect on his part, there is no dispute that Plaintiff did not timely respond to Defendant's written discovery requests. See Mot. Dismiss for Failure to Prosecute [#69] (“Motion to Dismiss”) at 2. While Plaintiff states that he called counsel to ask about getting another copy of the discovery, and that he did not receive a timely response, defense counsel notes that Plaintiff was given an extension of time to respond to October 21, 2021, and no response was received. Id. Again, this does not appear to be in dispute. Moreover, there appears to have been no fraud in connection with Defendants stating in the Motion to Dismiss [#69] that Plaintiff had not given Defendants an actual date for his deposition despite their requests. Finally, while the Motion to Dismiss [#69] does not reference Plaintiff's contacts with Defendants, the Court finds that this does not rise to the level of fraud or justify relief from judgment. Accordingly, the Court rejects Plaintiff's argument that the Judgment [#75] should be overturned based on fraud.
As to excusable neglect, even if the Court were to find that Plaintiff's failure to respond to discovery or requests for a deposition date was excusable on the basis that Plaintiff had attempted to contact defense counsel to work something out, the fact remains that Plaintiff did not respond to either Defendants' Motion to Dismiss [#69] or, more importantly, to the Court's Order to Show Cause [#71]. That Order directed Plaintiff to respond to Defendants' Motion and show cause by November 29, 2020, as to why the Court should not recommend that this case be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. Order to Show Cause [#71] at 2. The Order to Show Cause [#71] also specifically advised that failure to timely respond could result in dismissal of the case. Id. Plaintiff had the opportunity to argue the issues he is now asserting in a response to the Order to Show Cause [#71]; yet Plaintiff did not respond as ordered. This failure to respond led to the Order of Dismissal [#74] by District Judge Christine M. Arguello and the Final Judgment [#75]. Plaintiff has not addressed his failure to respond to the Order to Show Cause in the various Motions he has filed to vacate the Judgment [#75] or demonstrated excusable neglect in connection with same. Accordingly, the Court rejects Plaintiff's argument that the Judgment [#75] should be vacated on the ground of excusable neglect. The Court further finds that Plaintiff has not met the “high burden” under Rule 60(b) to justify relief from judgment on any other basis, or shown that this is an exceptional case that would warrant such relief.
Accordingly, the Court finds that Plaintiff's Motions seeking to vacate the judgment [#79, #88, #89, #90] must be denied. This necessarily requires that Plaintiff's request for judgment in his favor also be denied.
Plaintiff's assertion that default judgment is appropriate is specious, as Defendants filed answers and participated in the case.
B. Other Motions
As the Court has ruled on Plaintiff's Rule 60(b) Motions [#79, #90] and Motions for Judgment [#88, #89], Plaintiff's Motion for Status [#84] and Second Motion for Status [#86] are denied as moot. In addition, as the Court has found that Plaintiff's Rule 60(b) Motions [#79, #90] and Motions for Judgment [#88, #89] lack merit, it is recommended that the remaining motions filed by Plaintiff, including the Application to Proceed [#80], the Motion for Appointment of Counsel [#81], and the Motion to Proceed [#82], be denied for lack of jurisdiction as the case has been terminated.
III. Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff's First Rule 60(b) Motion [#79] and Plaintiff's Second Rule 60(b) Motion [#90] be DENIED.
IT IS FURTHER RECOMMENDED that Plaintiff's First Motion for Judgment [#88], which is mistakenly titled as an order, and Second Motion for Judgment [#89] be DENIED.
IT IS FURTHER RECOMMENDED that the Application to Proceed in District Court Without Prepaying Fees or Costs [#80] be DENIED.
IT IS FURTHER RECOMMENDED that the Motion for Appointment of Counsel [#81] be DENIED.
IT IS FURTHER RECOMMENDED that the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 [#82] be DENIED.
IT IS FURTHER ORDERED that the First Motion for Status [#84] and the Second Motion for Status [#86] are DENIED AS MOOT.
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).