Opinion
Civil Action 21-cv-709
04-19-2023
ERICK LEE, Plaintiff, v. CO1 RIETSENA; CO1 BRUBAKER; and LT WEAKLAND, Defendants.
Cathy Bissoon District Judge
AMENDED REPORT AND RECOMMENDATION RE: ECF NO. 9
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Plaintiff s Motion for Reconsideration, ECF No. 9, be granted, and that Plaintiff be granted a date certain by which to comply with the Deficiency Order dated June 9, 2021. ECF No. 3.
II. REPORT
A. Relevant Background
Plaintiff Erick Lee (“Plaintiff') is a state prisoner who is incarcerated at the State Correctional Institute at Frackville (“SCI-Frackville”) in Frackville, Pennsylvania. This case commenced on May 27, 2021, with the receipt of Plaintiffs Complaint without payment of the required filing fee, or a motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1.
On June 9, 2021, this Court issued a Deficiency Order, in which Plaintiff was directed either to pay the filing fee or move to proceed IFP. ECF No. 3. The deadline to respond thereto was July 9, 2021. Id. at 3. Plaintiff did not respond, and an Order to Show Cause was issued on August 27, 2021. ECF No. 4. The deadline to respond to the Order to Show Cause was September 24, 2021. Id. at 1. The Order to Show Cause was mailed to Plaintiff at his former address of record, but the Order was returned as undeliverable on September 8, 2021. On the following date, the Order to Show Cause was re-mailed to Plaintiff at SCI-Frackville.
Plaintiff failed to respond to the Deficiency Order or the Order to Show Cause; nor did he pay the filing fee or move for leave to proceed IFP. Accordingly, on October 29, 2021, the undersigned issued a Report and Recommendation recommending that this case be dismissed without prejudice due to Plaintiffs failure to prosecute. ECF No. 5 at 1. Objections to the Report and Recommendation were due on November 15, 2021. Id. at 4. Plaintiff did not file objections. As such, on December 30, 2021, United States District Judge Cathy Bissoon issued an order dismissing this case with prejudice. ECF No. 7. Judge Bissoon issued a Judgment Order against Plaintiff pursuant to Rule 58 of the Federal Rules of Civil Procedure on the same date. ECF No. 8.
Copies of the Report and Recommendation were mailed to Plaintiff at both SCI-Pine Grove and SCI-Frackville. ECF No. 5 at 4.
On November 18, 2022 - more than a year after the Report and Recommendation was issued, and almost eleven months after this case was dismissed with prejudice - Plaintiff filed the instant Motion for Reconsideration. ECF No. 9. In the Motion, Plaintiff asserts that he sent multiple notices of his change of address to this Court, as well as three prior motions for reconsideration. He asserts that staff at SCI-Frackville “have constantly stopped [his] mail from leaving the facility.” Id. at 1. Plaintiff alleges that the only mail that he received from this Court was the order dismissing this case. Id. Plaintiff indicates in his motion that he submits it subject to penalty of perjury. Id. By way of relief, Plaintiff seeks leave to file objections to the Report and Recommendation dated October 29, 2021. Id.
But see ECF No. 12 at 4 (discussing evidence indicating that Plaintiff had received mail from this Court at SCI-Frackville).
On November 28, 2022, the undersigned ordered Plaintiff to:
submit any evidence in his possession that he attempted to mail three prior motions for reconsideration to this Court, as well as that prison officials interfered with said mailing. Plaintiff further shall submit any evidence that he attempted to comply with the 3 Deficiency Order dated June 9, 2021, and the 4 Order to Show Cause dated August 27, 2021.ECF No. 10. That Order was returned as undeliverable because it was mailed to Plaintiff s former address at SCI-Pine Grove - which still was Plaintiffs address of record at the time. Plaintiff s address on the docket was updated to SCI-Frackville on December 21, 2022, and the Order was re-mailed to Plaintiff there on December 21,2022. ECF No. 11. Plaintiff was given until January 20, 2023 to respond. Id.
As of March 27, 2023, no response from Plaintiff had been docketed. Accordingly, the undersigned issued a Report and Recommendation on that date recommending that Plaintiffs Motion for Reconsideration be denied. ECF No. 12. The Report and Recommendation dated March 27, 2023 relied on the lack of record evidence that any mailing had been interfered with in order to conclude that the Motion for Reconsideration was untimely, and that Plaintiff had failed to establish entitlement to relief. Id. at 3-7.
On April 4, 2023, Plaintiffs response to the Order of November 28, 2022, was docketed. ECF No. 13. Apparently, Plaintiffs response was received by the Clerk of Court on March 21, 2023 - several days prior to the issuance of the Report and Recommendation. However, due to an oversight, the response was not docketed until April 4, 2023, after the Report and Recommendation was issued. Id. at 1.
Attached to the response is an inmate grievance dated March 1, 2023, indicating that Plaintiff had sent a letter to this Court in January of 2023 responding to the Order of November 28, 2022. A written response by prison staff, dated March 9, 2023, indicates that if the letter had been sent to the mail room, it would have been mailed. Id. at 2.
In in light of Plaintiffs filing at ECF No. 13 and the identified docketing issue, the undersigned issued an Order on April 17, 2023, rescinding the Report and Recommendation. ECF No. 14. This Amended Report and Recommendation follows.
B. Legal Analysis
Rule 60(b) of the Federal Rules of Civil Procedure allows a court to relieve a litigant from judgment based on certain, enumerated reasons. Relevant to this Report and Recommendation is the catch-all provision of Rule 60(b)(6), which allows relief for “any other reason that justifies [it]. Fed.R.Civ.P. 60(b)(6). All motions filed pursuant to Rule 60(b) must be made within a “reasonable time.” Fed.R.Civ.P. 60(c)(1).
Plaintiff does not allege interference on the part of any Defendant - all of whom appear to be located at SCI-Pine Grove. See ECF No. 1 at 3. Accordingly, subsection (b)(3) is not applicable.
Plaintiff asserts - under penalty of perjury - that he has sent a total of four motions for reconsideration over the roughly-eleven month period of time between the issuance of final judgment and the filing of the instant motion, and that staff at his prison interfered with his outgoing mail. ECF No. 9 at 1. When ordered to provide evidence supporting these averments, or that he otherwise attempted to comply with the earlier orders of this Court, Plaintiff belatedly submitted a response which was received on March 21, 2023. ECF Nos. 10, 11, and 13. Rather than directly addressing the issues as directed, Plaintiff s response was evidence that a substantive response had been mailed in January of 2023, but never was received by this Court. ECF No. 13 at 2.
Plaintiffs response received on March 21, 2023, indicates an attempt to comply with the orders of this Court, and at least hints at the possibility that Plaintiffs failure to do so might have been due to factors outside of his control. Therefore, given the evidence of record - including Plaintiffs response received March 21, 2023 - and viewed under the totality of the circumstances of this case, Plaintiff has established that he filed the present Motion for Reconsideration within a reasonable period of time.
“Rule 60(b)(6)... permits reopening when the movant shows ‘any ... reason justifying relief from the operation of the judgment' other than the more specific circumstances set out in Rules 60(b)(1)-(5).” Gonzalez v Crosby, 545 U.S. 524, 528-29, citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863, n.11 (1988); Klapprott v. United States, 335 U.S. 601, 613 (1949). A “movant seeking reliefunder Rule 60(b)(6) [must] show ‘extraordinary circumstances' justifying the reopening of a final judgment.” Gonzalez, 545 U.S. at 535. The movant bears a heavy burden of proof that extraordinary circumstances are present. Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991).
Here, Plaintiff has met his burden to show entitlement to relief. As discussed above, the record provides support for the conclusion that Plaintiff has attempted to comply with this Court s orders, and that his mailings have not been received due to factors beyond his control. Therefore, out of an abundance of caution, his Motion for Reconsideration should be granted.
III. CONCLUSION
Based on the reasons set forth above, it respectfully is recommended that Plaintiff s Motion for Reconsideration, ECF No. 9, be granted, and that Plaintiff be granted a date certain by which to comply with the Deficiency Order dated June 9, 2021. ECF No. 3.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).