Opinion
Civil Action 22-cv-01979-CNS-KLM
02-17-2023
CAROLL LATIMORE, Plaintiff, v. DENVER HOUSING AUTHORITY (DHA) OF THE CITY AND COUNTY OF DENVER; DAVID NISIVOCCIA, Executive Director, DHA; LORETTA OWENS, Director Housing Voucher Program, DHA; NICOLE MATTEO, Employee DHA; ANGIE TRUJILLO, Employee DHA; MERCEDES PINEDA, 504 Coordinator, DHA, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Plaintiff's Motion for Release from Stipulation and Order[#7]and Motion to Determine if Settlement Negotiator is Going to Resolve Application of the Prior Joint Stipulation to the Conspiracy Claim [#39] (collectively “Motions”). Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c), the Motions have been referred to the undersigned for a recommendation regarding disposition. See [#8], [#40]. The Court has reviewed the Motions [#7, #39], the Responses [#54, #56], the Reply [#60], the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion to Determine if Settlement Negotiator is Going to Resolve Application of the Prior Joint Stipulation to the Conspiracy Claim [#39] is denied. It is also respectfully recommended that the Motion for Release from Stipulation and Order [#7] be denied.
''[#7]'' 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.
Since the Motion for Release [#7] is filed under Rule 60(b), the Court has issued a Recommendation as to this Motion rather than an Order. See Sutter v. Goetz, No. 16-cv-02552-DME-KLM, 2019 WL 2269739 (D. Colo. May 24, 2019).
I. Introduction
Plaintiff, who is proceeding pro se in this matter, is a Housing Choice Voucher (“Voucher”) (Section 8) Program Participant (“Program Participant”) overseen by Defendant Denver Housing Authority of the City and County of Denver (“DHA”). Plaintiff asserts various claims under 42 U.S.C. §' 1983 and 1985 for a violation of her civil rights related to Defendants' failure to provide her with the necessary forms under the Housing Choice Voucher Program (“Voucher Program”). See generally Am. Compl. [#42]. Specifically, Plaintiff asserts that Defendants' actions violated her constitutional rights, including her First, Fourth, and Ninth Amendment rights, and that Defendants conspired against her in violation of 42 U.S.C. § 1985. Id. Plaintiff further alleges violation of the Americans with Disabilities Act (“ADA”) and Fair Housing Act (“FHA”). Id.
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).
Relevant to the instant Motions, Plaintiff's Voucher was cancelled in 2021. Consequently, Plaintiff filed suit on September 7, 2021, in Civil Action No. 21-cv-2431-LTB (the “2021 Action”) against DHA employees David Nisivoccia, Loretta Owens, Nicole Matteo, and Angie Trujillo, who are also sued in this case. See Compl. [#1] in the 2021 Action, attached as Exhibit A to Defendants' Response [#54] to the Motion for Release [#7]. Plaintiff alleged a violation of the ADA in connection with the DHA's cancellation of her Voucher due to the fact that the annual paperwork that Plaintiff needed to complete had been sent to her P.O. Box, and she did not receive notice of that mailing. See id. at 3, 6-7. Plaintiff requested an order for specific performance such that DHA would be compelled to maintain Plaintiff's housing benefit. Id. at 11. Plaintiff also requested: (1) assistance and cooperation from DHA so that Plaintiff could sign a new lease; (2) a permanent injunction against DHA that would prevent any actions that would place Plaintiff's housing situation in jeopardy; (3) an order that would prevent coercion or retaliation by DHA; and (4) that DHA send Plaintiff's mail to her P.O. Box instead of her residence. Id. at 11-12.
On September 16, 2021, Plaintiff and Defendants, on behalf of DHA, entered into a Joint Stipulation of Dismissal With Prejudice [#8] (“Stipulation') in the 2021 Action whereby they agreed that (1) Plaintiff's housing voucher would be reinstated, (2) DHA would notify Plaintiff's landlord of her continued participation in the Voucher Program; and (3) the 504 coordinator for the DHA would respond to Plaintiff's letter request of May 21, 2021, to receive mail at her P.O. Box. The Stipulation is attached as Exhibit B to the Response [#54] to the Motion for Release [#7]. Plaintiff's claims in the 2021 Action were dismissed with prejudice pursuant to the Stipulation on September 22, 2021. See Order [#9] ¶ 2021 Action, attached as Exhibit C to the Response [#54] to the Motion for Release [#7].
On August 8, 2022, almost a year later, Plaintiff filed the instant action after the DHA cancelled Plaintiff's Voucher for the 2022-2023 period, after denying Plaintiff's request for accommodation to receive the mail from DHA at her P.O. Box. See Compl. [#1]; Am. Compl. [#42].
II. Analysis
A. The Resolution of Application of the Stipulation
The Court first addresses Plaintiff's Motion to Determine if Settlement Negotiator is Going to Resolve Application of the Prior Joint Stipulation to the Conspiracy Claim [#39]. This Motion asks if the “person doing a settlement negotiation” in the case is going to resolve the applicability of the Stipulation in the 2021 Action to this case as raised in Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) [#62] (the “Motion to Dismiss”).
The Court presumes that the “settlement negotiation” Plaintiff references is the Settlement Conference that was held by the undersigned on January 17, 2023. See Minute Entry [#81]. No settlement was reached at the Settlement Conference, and the undersigned did not resolve the applicability of the Stipulation because that was not the purpose of the Conference. Moreover, the Motion to Dismiss [#62], which Plaintiff asserts raises the applicability of the Stipulation (see Motion [#39] at 3), has not been referred to the undersigned and will thus be resolved by District Judge Charlotte N. Sweeney. Accordingly, the Motion to Determine if Settlement Negotiator is Going to Resolve Application of the Prior Joint Stipulation to the Conspiracy Claim [#39] is denied. The undersigned will, however, make a recommendation on the issue of whether Plaintiff can be released from the Stipulation and Order of Dismissal in the 2021 action, to which the Court now turns.
B. Motion for Release from Stipulation and Order
As noted previously, Plaintiff seeks to be released from the Stipulation and Order dismissing the case in the 2021 Action pursuant to various provisions of Fed.R.Civ.P. 60(b). Rule 60(b) provides that “[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding” for the reasons specified therein. “Relief under Rule 60(b) is discretionary and is warranted only in exceptional circumstances.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); see also Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). “A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds for relief from judgement.” Van Skiver, 952 F.2d at 1243-44. Motions under Rule 60(b) “must be filed within a reasonable time-and for reasons (1), (2), and (3), no more than a year after entry of judgment.” Fed.R.Civ.P. 60(c)(1). Plaintiff's Motion for Release from Stipulation and Order [#7], filed on August 8, 2022, was filed within one year of the entry of the Stipulation and Order of Dismissal, and is thus timely.
1. The Propriety of the Filing of the Motion in this Case
While neither party has addressed this issue, the Court recommends at the outset that the Motion for Release from Stipulation and Order [#7] be denied because it should have been filed in the 2021 Action in which the Stipulation and Order were entered. The Tenth Circuit has made clear that it “has followed other jurisdictions in declaring that Rule 60(b) is an extraordinary procedure permitting the court that entered judgment to grant relief therefrom upon a showing of good cause within the rule.” Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444 (10th Cir. 1983) (emphasis added); see also Budget Blinds, Inc. v. White, 536 F.3d 244, 268 (3rd Cir. 2008) (Cowen, J., concurring in part and dissenting in part) (stating the general rule that notwithstanding the rule's silence on the topic, applications for Rule 60(b) must typically be made in the court rendering the judgment.”) (citing, e.g., 12 James Wm. Moore et al., MOORE'S FEDERAL PRACTICE § 60.60[1] (3d ed.1997) ((although the rule itself does not expressly so provide, “it is clear that the drafters of the rule contemplated that the motion ... would always be brought ‘in the court and in the action in which the judgment was rendered'”) (emphasis added); 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE § 2685 AT 377) (“Rule 60(b) motions are generally made to rendering court.)); see also S.E.C. v. Gellas, 1 F.Supp.2d 333, 335 (S.D.N.Y. 1998) (“Except in limited circumstances not present here, a Rule 60(b)must be brought in the court that rendered the disputed order). Under the above authority, the requirement of filing in the same “court” is not satisfied by bringing a new action in the United States District Court for the District of Colorado, because the motion must be filed in the same action, i.e., the case in which judgment was already rendered. See also See Justice v. Robinson, No. 21-cv-326-SAC, 2021 WL 5298669, at *2 (D. Kan. Nov. 15, 2021).
Plaintiff has not cited any authority that her Motion seeking to vacate the Stipulation and Order is properly before the Court in this case. Accordingly, it would appear that this Court lacks jurisdiction under Rule 60(b) to review the actions by Judge Babcock in the 2021 action. See Justice, 2021 WL 5298669, at *2 (holding that the court “has no jurisdiction under Rule 60 to review action taken by another judicial officer in a separate case”).
2. Rule 60(b)
Even if this Court decides it has jurisdiction to determine Plaintiff's Motion for Release [#7], the Court recommends that the Motion be denied on the merits.
The Court first addresses Plaintiff's reliance on Rule 60(b)(3), which provides that the court may relieve a party from a judgment or order for “fraud . . ., misrepresentation, or misconduct by an opposing party.” The Tenth Circuit has held that “[a] party relying on Rule 60(b)(3) ‘must, by adequate proof, clearly substantiate the claim of fraud, misconduct or misrepresentation.'” McCleland v. Raemisch, No. 21-1303, 2022 WL 1593414, at *3 (10th Cir. May 20, 2022) (quoting Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1290 (10th Cir. 2005)). “In other words, ‘[the party] must show clear and convincing proof of fraud, misrepresentation, or misconduct.”' Zurich N. Am., 426 F.3d at 1290 (internal quotation marks and citation omitted).
Here, Plaintiff asserts that the 504 Coordinator for the DHA improperly denied her request for accommodation to receive mail at her P.O. Box. The letter of November 18, 2021, denying the request (Motion [#7] at 5-6) stated that the request was denied based on lack of information from Plaintiff's doctor, who the Coordinator stated did not respond within ten days to DHA's letter of October 21, 2021 requesting information. Plaintiff asserts that she did not receive a copy of the letter to her doctor as required by the Stipulation, even though the 504 Coordinator informed Plaintiff in the letter that she can request another copy from the Legal Department, and avers that the Coordinator's implied representation of having already sent a copy to Plaintiff is “disingenuous”. Mot. Release from Stip. and Order [#7] at 2. Plaintiff further asserts that she did not sign a release for the DHA to contact her doctor. Id.; see also Reply [#60] at 10-12. The Court finds that the conduct Plaintiff complains of does not rise to the level of misconduct or a misrepresentation within the meaning of Rule 60(b)(3).
First, the Stipulation did not require the 504 Coordinator to send Plaintiff a copy of the letter to her doctor, contrary to Plaintiff's representation. The Stipulation required only that the Coordinator “respond to Plaintiff's letter dated May 2, 2021, by email . . . and by mail.....” Resp., Ex. B ¶ 3. While Plaintiff may believe that the Coordinator's indication that she had sent a copy of that letter to her is “disingenuous[,]” there is no indication, by “adequate proof[,]” that it rises to the level of a misrepresentation. Se McCleland, 2022 WL 1593414, at *3. The Coordinator may have mailed the letter and Plaintiff simply did not receive it. Moreover, the Coordinator expressly told Plaintiff she could receive a copy of the letter from the legal department, which Plaintiff chose not to do. See Motion for Release [#7] at 5.
The fact that the Coordinator did not obtain a release from Plaintiff to contact her doctor, or any other actions that Plaintiff complains of in her Motion [#7] or Reply [#60], also does not rise to the level of misconduct or a misrepresentation under Rule 60(b)(3). It is certainly reasonable to assume that when one requests accommodation and provides information from a doctor as to that request, which Plaintiff claims to have done (Motion [#7] at 3, the doctor may be contacted as to the need for the accommodation requested. In any event, Plaintiff has not clearly substantiated through adequate proof that a misrepresentation was made or that misconduct occurred. Zurich N. Am., 426 F.3d at 1290.
Rule 60(b)(5) provides that that the court may relieve a party from a judgment or order if applying a judgment “prospectively is no longer equitable.” Plaintiff argues under this rule that it is not equitable to apply the Stipulation prospectively because she needs to receive her mail at her P.O. Box, and that “should not be off the table.” Mot. for Release [#7] at 3. Plaintiff further avers that she was only a couple of weeks from being homeless when she signed the Stipulation, and her thinking was “seriously impacted.” Id. Plaintiff “had no time and was not in a state of mind to consider her legal rights.” Id.; see also Reply [#60] at 12-14. The Court finds that this rule does not provide a basis for relief for Plaintiff.
Under Rule 60(b)(5), a court has equitable authority to modify a decree under F.R.C.P. 60(b)(5) “'in light of changed circumstances.'” Alpine Bank v. Hubbell, No. 05-cv-00026-CMA-KLM, 2010 WL 1258002, *8 (citing Zimmerman v. Quinn, 744 F.2d 81,82 (10th Cir. 1984)). This means that there must have been “‘a significant change either in factual conditions or in law'” which warrants revision. Trujillo v. Lucero, 788 Fed.Appx. 610, 613 (10th Cir. 2019) (citation omitted). “The party seeking modification . . . bears the burden of showing this.” Id. The Court finds that Plaintiff fails to identify any such “significant change.” The conditions of Stipulation upon which the Order of Dismissal in the 2021 Action was based were completed shortly after the Stipulation was entered into, and the Stipulation (upon which the dismissal was based) addressed only Plaintiff's 2021 Voucher, not the 2022 Voucher or any future Vouchers. The Stipulation also did not guarantee the receipt of mail at Plaintiff's P.O. Box. While Plaintiff now thinks that the Stipulation is inequitable, and argues that she has discovered additional facts which purportedly show ill intentions or hostility on the part of DHA employees (see, e.g., Reply [#60] at 6-7), she has not shown a significant change as to the factual conditions or law related to the Stipulation itself or the Order of Dismissal in the 2021 Action. The Stipulation was complied with, regardless of any improper motive. Plaintiff is simply dissatisfied with the result. This does not make the Stipulation inequitable.
Related to the above discussion, Plaintiff has not shown that the Order of Dismissal in the 2021 Action had prospective application. A judgment has “prospective application” within the meaning of Rule 60(b)(6) “when it “is “executory” or involves “the supervision of changing conduct or conditions.” Brown v. Dietz, 2005 WL 2175159, at *2 (D. Kan. Sept. 7, 2005) (citing Twelve John Does v. Dist. Of Colombia, 841 F.2d 11333, 1139 (D.D.C. 1998)). In this case, as in Brown, the Order “memorializing the parties' stipulation . . . . did not result in a judgment with such ‘prospective application[.]'” as it did not seek to supervise any future conduct or conditions.” Id.
The Court thus 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 v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991) (citation 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). Thus, “[r]elief under Rule 60(b)(6) is appropriate only when circumstances are so ‘unusual or compelling' that extraordinary relief is warranted, or when it ‘offends justice' to deny such relief.” Tso v. Murray, No. 19-cv-00293-PAB-STV, 2021 WL 4206246, *5 (D. Colo. Sep. 15, 2021) (quoting Cashner, 98 F.3d at 579). The Tenth Circuit has “sometimes found such extraordinary circumstances to exist when, after entry of judgment, events not contemplated by the moving party render enforcement of the judgment inequitable. Cashner, 98 F.3d at 597. The Court finds that Plaintiff has not made this showing, and is thus not entitled to relief under Rule 60(b)(6).
The fact that Defendants ultimately did not approve Plaintiff's request to receive her mail at her P.O. Box after the Stipulation was entered into in the 2021 Action, and canceled her Voucher for housing this year, were not within the scope of or covered by the Stipulation. While the 2021 Action sought an order to maintain Plaintiff's housing benefits in the future and to receive mail at her P.O. Box, the Stipulation she chose to enter into, and which was the basis of the Order of Dismissal, did not address these issues. Thus, Plaintiff cannot argue that enforcement of the Stipulation was made inequitable by events not contemplated by the parties. Further, the Court cannot find that it would “offend justice” to enforce the Stipulation.
Again, the Court finds the Brown case instructive. Brown stated that Rule 60(b)(6) may not be used “for relieving a party from free, calculated, and deliberate choices that he or she has made.” Id., 2005 WL 2175159, at *2. In that case, as here, the plaintiff “made a free, calculated, and deliberate choice to stipulate to dismissal of th[e] case with prejudice” case based on an agreement. Id. The court found that the fact the plaintiff has had time “to reflect on whether he should have made that choice does not rise to the level of constituting sufficiently extraordinary circumstances to warrant relief under Rule 60(b)(6).” Id. The Court finds that applicable here.
Plaintiff's argument under Rule 60(b)(6) essentially amounts to a duress assertion. Plaintiff avers, among other things, that she had no choice but to sign the Stipulation because the alternative was losing her housing. Mot. Release from Stip. and Order [#7] at 4. This is not sufficient to establish duress. To establish duress, a party must show an unlawful threat or other improper means, so that the other party's will was so taken away that he or she could not properly enter into the contract. Bennett v. Coors Brewing Co., 189 F.3d 1221, 1231 (10th Cir. 1999); Vail/Arrowhead, Inc. v. District Court for the Fifth Judicial Dist., Eagle County, 954 P.2d 608, 612 (Colo.1998) (“A contract is voidable on the grounds of duress if a party's manifestation of assent is induced by an improper threat that leaves no reasonable alternative.”;) see also Anselmo v. Manufacturers Life Ins. Co., 771 F.2d 417, 420 (8th Cir.1985) (holding that the fact that an employee faces a tough decision of either “accepting ... termination perks or pursuing his legal rights under [an] employment agreement ... does not mean that [the employee] lacked the requisite free will to make the decision.”). “Threats to do what one may lawfully do [are] not duress.” Heald v. Crump, 215 P. 140, 141 (1923). Here, Plaintiff has not asserted any allegations from which the Court can find that the Stipulation was entered into by an improper threat that left no reasonable alternative. Instead, she lawfully chose to enter into a Stipulation based on her free will.
d. Other Arguments
Finally, Plaintiff's Reply requests for the first time that the Stipulation and Order of Dismissal in the 2021 action be vacated under Rule 60(b)(2) based on newly discovered evidence. See Reply [#60] at 6-7. Plaintiff asserts that she has discovered evidence since the Stipulation was entered into “that likely would have led to a different result.” Id. Plaintiff thus avers that she discovered a conspiracy involving Nicole Matteo and Trujillo regarding the denial of her request to receive mail at her P.O. Box because Trujillo was “offended by Plaintiff telling her what the law required of DHA.” Id. at 7. Plaintiff has not shown how the new facts she learned would have led to a different result, or represented that she would not have entered into the Stipulation based on these facts. See Zurich N. Am., 426 F.3d at 1290.
Furthermore, an issue raised for the first time in a Reply is generally improper because it “'robs the [other party] of the opportunity to demonstrate that the record does not support [the moving party's] factual assertions and to present an analysis of the pertinent legal precedent that may compel a contrary result.'” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000)). As a result, “'arguments raised for the first time in a reply brief are generally deemed waived[.]'” Id. (quotation omitted).
III. Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion to Determine if Settlement Negotiator is Going to Resolve Application of the Prior Joint Stipulation to the Conspiracy Claim [#39] is DENIED.
IT IS FURTHER RECOMMENDED that Plaintiff's Motion for Release from Stipulation and Order [#7] be DENIED.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, Plaintiff 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).