Opinion
Civil Action 17 - 1637 ECF 82
02-16-2023
CHRISTOPHER JOSEPH SMARR, Plaintiff, v. WESTMORELAND COUNTY, et al., Defendants.
David S. Cercone, District Judge.
REPORT & RECOMMENDATION
Lisa Pupo Lenihan, United States Magistrate Judge.
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Plaintiff's Motion to Reconsider and Reopen Civil Action (ECF No. 82) be denied.
II. REPORT
A. Background
Plaintiff initiated this pro se prisoner civil rights action in December 2017. The Complaint was filed on December 27, 2017 after a grant of his motion for leave to proceed in forma pauperis. (ECF Nos. 1-3.) Plaintiff's Complaint was served on the Defendants who then filed motions to dismiss for failure to state a claim. (ECF Nos. 46, 51, 54.) Plaintiff was directed to file responses to the motions to dismiss, but he failed to do so by the Court ordered deadlines. (ECF Nos. 48, 53, 56.) The Court therefore ordered Plaintiff to show cause why this case should not be dismissed for his failure to prosecute. (ECF No. 57.) After Plaintiff again failed to file his responses to the motions to dismiss, or otherwise show cause why this case should not be dismissed for his failure to prosecute, the Court dismissed this case without prejudice on August 29, 2018. (ECF No. 58.) No action was taken by Plaintiff for almost four-and-a-half years, until he filed the Motion for Reconsideration of the Court's Order dismissing his case on February 2, 2023. (ECF No. 82.) In the Motion, Plaintiff states that he was unable to file responses to the Defendants' motions to dismiss because he had limited access to the law library and because temporary transfers caused a delay in him receiving his mail. He also states that he was unable to file his motion to reopen this case until now because of limited access to the law library and prison restrictions due to the Covid pandemic. He requests that the Court reconsider its order dismissing his case and reopen this action so that he can litigate his claims against the Defendants.
B. Discussion
Plaintiff is asking this Court to reconsider its order dismissing this case and to reopen these proceedings so that he can pursue his claims against the Defendants. However, he cites no specific procedural rule under which this Court should consider his Motion.
Whether and under what procedural mechanism this Court can grant Plaintiff's request to reopen this case is dictated by whether the order that terminated the case was a final order. Federal Rule of Civil Procedure 60(b) allows a party to “request reopening of his case, under a limited set of circumstances,” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005), but only applies to “final” judgments, orders or proceedings. See Fed.R.Civ.P. 60(b).
As previously noted, the Court dismissed Plaintiff's case “without prejudice.” With respect to such dismissals, the Court of Appeals for the Third Circuit has said:
Ordinarily, an order dismissing a complaint without prejudice is not a final and appealable order. Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002). This principle, however, does not apply if the statute of limitations has run by the time the court orders dismissal without prejudice.
A “statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice,” as “the original complaint is treated as if it never existed. Cardio-Medical Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983). Therefore, the dismissal of a complaint without prejudice after the statute of limitations has run forecloses the plaintiff's ability to remedy the deficiency underlying the dismissal and refile the complaint. Ahmed, 297 F.3d at 207. In these circumstances, the order dismissing the complaint without prejudice is considered a final and appealable order. Id.Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir. 2005) (emphasis added). Applying this concept here, the Court must determine whether the statute of limitations on Plaintiff's claims had run as of the day the Court dismissed this case without prejudice, on August 29, 2018. See Atkinson v. Middlesex County, 610 Fed.Appx. 109, 112 (3d Cir. 2015) (“[W]e must determine if the statute of limitations on Atkinson's claim had expired as of May 31, 2011, the date of the Dismissal Order.”)
Plaintiff's allegations concern conduct that occurred on and shortly after December 9, 2016. Plaintiff's claims were all based on 42 U.S.C. § 1983, and “[t]he statute of limitations applicable to § 1983 claims in Pennsylvania is two years.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). Because the Court's August 29, 2018 order was issued before the expiration of the statutory period of two years, the Court's order of dismissal without prejudice was not a “final order” for purposes of Rule 60(b). Relief pursuant to Rule 60(b) is, therefore, unavailable in this matter. See, e.g., Wrobleski v. Acs, No. 2:14-0060, 2016 WL 397466, at *1-2 (W.D. Pa. Feb. 2, 2016) (finding that relief under Rule 60(b) was not available and denying the plaintiff's motion to reopen because the order dismissing her case for failure to prosecute was not a final order since it was entered before the statute of limitations expired on her claims).
Despite the limitation on Rule 60(b), a district court retains inherent authority to reconsider any previous ruling in the same litigation. Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006). “Rule 60 does not affect, interfere with, or curtail the common-law power of the Federal courts” in cases over which they maintain jurisdiction; instead, “the broad power, which was theirs by the common law, to deal with situations where . . . relief should be granted from manifest error, remain[s] inherent in the court.” United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973) (quoting Bucy v. Nevada Construction Co., 125 F.2d 213, 217 (9th Cir. 1942)). Thus, despite the inapplicability of Rule 60, this Court retains the authority to reconsider its previous ruling.
Only three situations warrant granting reconsideration: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The grant or denial of reconsideration lies within the discretion of the district court. N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
Plaintiff does not meet any of the three grounds for granting a motion for reconsideration. Furthermore, Plaintiff has not shown any good reason for his failure to take appropriate action earlier and the reasons cited by Plaintiff as to why he was unable to comply with the Court's orders are uncompelling. This Court has numerous civil rights cases filed by incarcerated Plaintiffs, each of whom were able to, at least on some basis, access the law library during covid or, if not, request an extension of time. In this case, Plaintiff ignored two court orders from 2018 and then did absolutely nothing for over 4 years. Therefore, the Court should not grant Plaintiff's Motion under its inherent power.
If Plaintiff still desires to pursue his claims, then his proper recourse is to file another suit. However, Plaintiff should be advised that his claims will likely be subject to dismissal as they are barred by the statute of limitations.
III. CONCLUSION
For the reasons stated, it is respectfully recommended that Plaintiff's Motion to Reconsider and Reopen Civil Action (ECF No. 82) be denied.
In accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2, the parties are allowed fourteen (14) days from the date of service to file objections to this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.