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holding that pro se plaintiff's nineteen-month delay in bringing Rule 60(b) motion was unreasonable
Summary of this case from Zhao v. State Univ. of N.Y.Opinion
No. 86 Civ. 163 (WK)
September 23, 2002
Attorney For Plaintiff: ( pro se) Richard Graham, #77-D-0251 from Southport Correctional Facility, Pine City, NY.
Attorney For Defendants: Marc A. Konowitz, Assistant Attorney General with the Office of the Attorney General of the State of New York from New York, New York.
ORDER
Plaintiff Richard Graham ("Plaintiff"), an inmate in the custody of the New York State Department of Correctional Services, brought this action under 42 U.S.C. § 1983 alleging various violations of his civil rights. On September 22, 2000, after "a history of long inactivity and delays," see Graham v. Sullivan, (S.D.N.Y. Nov. 5, 1999) 1999 WL 1006181, *1, we issued a Memorandum and Order wherein we granted summary judgment in favor of Defendants James Sullivan and Thomas A. Coughlin (collectively the "Defendants") on all of the Plaintiffs claims and thereby dismissed this action with prejudice. See Graham v. Sullivan, (S.D.N.Y. Sept. 29, 2000) 2000 WL 1473723, *8. According to the Court's records, our Memorandum and Order was filed on September 29, 2000, and the Clerk of the Court entered that order onto the docket on October 4, 2000. Although over nineteen months have passed since our decision, the Plaintiff now attempts to revive his lawsuit.
In our May 10, 2002 order denying the Plaintiffs previous May 9, 2002 "Letter-Motion," we erroneously indicated that summary judgment had been entered in favor of the Defendants on October 29, 2000. See Graham v. Sullivan (S.D.N.Y. May 10, 2002) 2002 U.S. Dist LEXIS 9006, *1. The above-referenced dates reflect the correct chronology of events.
In his amended complaint, the Plaintiff asserted, inter alia, that correctional officials failed to protect him from other prisoners while he was an inmate in protective custody at the Sing Sing Correctional Facility. In granting summary judgment in favor of the Defendants, we noted that "no letters from plaintiff to defendants complaining of security threats while he resided in protective custody have emerged in discovery." Id. at *5. Accordingly, we found that "since defendants had no notice of the problem, they cannot be held liable." Id. On May 9, 2002, we received correspondence from the Plaintiff in which he indicated that he had found a letter, dated April 2, 1985, that he had sent many years before to the Defendants complaining of security threats while he had been in protective custody. The Plaintiff attached that April 1985 letter to his May 9th correspondence and stated that he wanted this case to be set for a jury trial as soon as possible.
Since this action had already been dismissed with prejudice, we construed the Plaintiffs May 9th letter as a motion to vacate our order granting summary judgment pursuant to Federal Rule of Civil Procedure 60 (b). See Graham v. Sullivan (S.D.N.Y. May 10, 2002) 2002 U.S. Dist. LEXIS 9006, *2. In addressing that motion, we held as follows:
As over a year and a half has passed since we granted summary judgment in favor of the Defendants, any attempt to vacate that summary judgment under either Rule 60(b)(1), 60(b)(2), or 60(b)(3) is clearly untimely. See FED.R.CIV.P. 60 (b)(1)-(3). Moreover, as over nineteen months have passed since we granted summary judgment, Plaintiffs substantial delay in filing this motion under either Rule 60(b)(4), 60(b)(5), or 60(b)(6) (not to mention his failure to discover the letter over the fifteen year course of this litigation) is unreasonable and he may not, as a result, obtain such relief on those grounds. See Peyser v. Searle Blatt Co., Ltd. (S.D.N.Y. Dec. 14, 2001) 2001 WL 1602129, *2 (holding that pro se plaintiffs sixteen month delay in bringing a Rule 60(b) motion was unreasonable); Young v. Coughlin (S.D.N.Y. Sept. 24, 2001) 2001 WL 1230836, *2 (holding that a pro se plaintiffs fourteen month delay in bringing a Rule 60(b) motion was unreasonable).Graham, 2002 U.S. Dist. LEXIS 9006 at *3-*4. Hence, although the Plaintiff had failed to enumerate the specific provision of Rule 60(b) under which he sought relief, we determined that a motion under any of Rule 60(b)'s provisions would be untimely and denied the motion accordingly. See id. at *3-*4.
On May 22, 2002, we received a "Letter-Motion FOR RECONSIDERATION, AND TO VACATE SUMMARY JUDGMENT" from the Plaintiff wherein he asked us to reconsider the foregoing decision. According to the Plaintiff, he never received a copy of our September 2000 Memorandum and Order granting summary judgment in favor of the Defendants and was thus unaware until now that he could have sought either reconsideration of that decision or an appeal therefrom. Since he was allegedly never "notified, or made aware of, or served with a copy of [the] order of summary judgment," the Plaintiff now contends that we must " NULLIFY" our summary judgment order and re-instate his lawsuit. See May 22, 2002 Richard Graham Letter at 3 (hereinafter referred to as the "May 22nd Graham Letter") (emphasis in the original).
The standards governing a motion for reconsideration are set forth in Local Civil Rule 6.3 and Federal Rule of Civil Procedure 59(e). Yurman Design Inc. v. Chaindom Enterprises, Inc. (S.D.N.Y. Feb. 22, 2000) 2000 WL 217480, *1, aff'd (2d Cir. Feb 15, 2001)4 Fed. Appx. 48. Such motions must be narrowly construed and strictly applied, and they are appropriate "only where the movant demonstrates that `the Court has overlooked controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court.'" Range Road Music, Inc. v. Music Sales Corp. (S.D.N.Y. 2000) 90 F. Supp.2d 390, 392 (citation omitted) (emphasis in the original). "The decision to grant or deny the motion is within the sound discretion of the district court." Primavera Familienstfung v. Askin (S.D.N.Y. 2001) 137 F. Supp.2d 438, 442.
The standards governing motions to alter or amend a judgment pursuant to Rule 59(e) and motions for reconsideration or reargument pursuant to Local Civil Rule 6.3 are the same. Word v. Croce (S.D.N.Y. July 5, 2001) 2001 WL 755394, *2.
"A motion for reconsideration . . . may not be used to advance new facts, issues or arguments not previously presented to the Court." Word v. Croce (S.D.N.Y. July 15, 2001) 2001 WL 755394, *2. See also Leonard v. Lowe's Home Center, Inc. (S.D.N.Y. April 12, 2002) 2002 WL 548745, *2 ("The parties may not present new facts or theories at this stage"). The Plaintiff never raised the Court's purported failure to notify him of the September 2000 summary judgment decision in his May 9th "Letter-Motion." Accordingly, these new facts, as well as the new issues arising therefrom, were not previously presented to us and the Plaintiff is now precluded from advancing them by way of a motion for reconsideration.
Even if we could take these new facts and issues into account and were to reconsider our decision to deny the Plaintiffs May 9th "Letter-Motion" on the basis thereof, we would still deny that Rule 60(b) "Letter-Motion." While there is little doubt that we have the discretion to re-open a judgment under Rule 60(b)(6) where a party was not sent notice of that judgment by the Court, see Radack v. Norwegian America Line Agency, Inc., (2d Cir. 1963) 318 F.2d 538, 542-543; Bones v. DiaPaul (W.D.N.Y. Mar. 26, 1986) 1986 WL 3806, *1, the circumstances presented by the case at bar do not warrant such relief.
Although the Plaintiff contends that "[n]o-where will any LOG BOOK show I was sent any copies of the" summary judgment order, see Graham Letter at 1-2, we have made inquiries with both the Clerk of the Court as well as our Courtroom Deputy and determined that a copy of our September 2000 summary judgment order was sent by the Court to the Plaintiff at the Otisville Correctional Facility. On August 27, 2000, only a month before we issued the Memorandum and Order granting summary judgment in favor of the Defendants, the Plaintiff had submitted another "Letter-Motion" to this Court addressed from the Otisville Correctional Facility. See Docket No. 53 (wherein the Plaintiff indicated immediately underneath his signature that he was sending the "Letter-Motion" from "P.O. Box 8, Otisville CF" in "Otisville, N.Y. 10963-0008"). Moreover, a few months before he submitted that August 2000 "Letter-Motion," we also received an April 20, 2000 "Letter-Motion" from the Plaintiff in "Opposition To Dismissal /or Summary Judgment," which was similarly sent to us from the Otisville Correctional Facility. Hence, upon issuing the Memorandum and Order, the Court mailed a copy of that decision to the Plaintiff at his last known address, namely the Otisville Correctional Facility. In fact, the record reflects that we received no indication from the Plaintiff that his address had changed until July 2001, nearly ten months after we had already granted summary judgment in favor of the Defendants. See Docket No. 55 (indicating that the Plaintiff had since been relocated to the Clinton Annex Correctional Facility).
Although we did not receive the original August 27, 2000 "Letter-Motion" immediately after it was filed on August 31, 2000, we did receive a copy of that "Letter-Motion" on September 5, 2000 (i.e. a few weeks in advance of our summary judgment decision).
Nowhere in his May 22, 2002 "Letter-Motion" does the Plaintiff indicate that the summary judgment order was mailed to an improper address. Nor does anything in the record support such a conclusion. Moreover, nowhere in his "Letter-Motion" does the Plaintiff suggest that he made any effort to contact us and ascertain the status of the action after the Defendants filed an affidavit in further support of their motion for summary judgment in August 2000. Indeed, the Plaintiff apparently did not once, between September 2000 and May 5, 2002, send a letter to us inquiring about this case. This is particularly startling because, despite the fact that the Plaintiff is incarcerated, both the formal record and the Court's file is replete with letters to this Court from the Plaintiff over the lengthy history of this litigation. Hence, although the Plaintiff indisputably knew how to contact us by letter regarding this case and did not hesitate to do so in the past, there is no indication that the Plaintiff made any effort to ascertain the status of his action for nearly twenty-one months before he submitted his May 9, 2002 motion to this Court. See Orshan v. Macchiarola (E.D.N.Y. 1985) 105 F.R.D. 534, 539 (concluding that a Rule 60(b) movant alleging that the Court had failed to provide him with notice of the entry of a judgment must make "an independent demonstration of diligent effort' in monitoring the suit" and that, "absent such affirmative industry," the Court's failure to provide such notice "would not warrant Rule 60(b) relief").
Under these circumstances, even if it were appropriate to consider the new facts and arguments presented by the Plaintiffs motion for reconsideration, we would still refuse to re-open our September 2000 summary judgment order pursuant to Rule 60(b)(6). See Bones, 1986 WL 3806 at *2 ("The circumstances of this case, especially the lack of any evidence that the Order was mailed to an improper address and the fact that the [ pro se] plaintiff neglected to make any effort to ascertain the status of the action for a period of over two years . . . convinces this Court that the plaintiff has failed to establish adequate cause for vacating the judgment") (alteration added); Orshan, 105 F.R.D. at 539-540 (refusing to grant Rule 60(b) relief where the defendant, who had not been mailed a notice by the court of the judgment entered against it, did not make a diligent effort to monitor the status of its lawsuit).
Nor do the additional arguments presented in a supplemental letter from the Plaintiff persuade us to the contrary. On June 3, 2002, we received a letter from the Plaintiff wherein he also asked us to take into account a number of additional facts in evaluating his May 22, 2002 "Letter-Motion" for reconsideration. See June 3, 2002 Richard Graham Letter at 1-2 (hereinafter referred to as the "June 3rd Graham Letter"). In that supplemental letter, he appears to argue that his failure to file a timely motion pursuant to the provisions of Rule 60(b) should be "excused" because: (a) he was allegedly attacked on a number of occasions by gang members in December 2001 and by correctional guards between April 2002 and May 2002; (b) he had been transferred to a number of different correctional facilities since the entry of our summary judgment order; and (c) he had been scheduled to see various medical specialists between February 2002 and May 2002 and was scheduled to see them again approximately around August or September 2002. See id. In other words, the Plaintiff asks us not to consider the period " from December 2001 — thru [sic] — May 15, 2002" in evaluating the timeliness of his May 9, 2002 "Letter-Motion." See id. (emphasis in the original).
As with the new facts presented in the initial May 22, 2002 "Letter-Motion" for reconsideration, the facts in the supplemental June 3rd letter were never before presented to this Court in the original May 9th Rule 60(b) "Letter-Motion." Accordingly, the Plaintiff is similarly precluded from advancing such facts by way of the motion for reconsideration now before us.
Even if we were to take the new facts in the supplemental letter into account and were to reconsider our decision to deny the Plaintiff's May 9th "Letter-Motion" on the basis thereof, we would still deny that Rule 60(b) "Letter-Motion." First, regardless of the various events which may have prevented the Plaintiff from moving for Rule 60(b) relief between December 2001 and May 2002, the Plaintiff did not file a motion for such relief within one year of the date our summary judgment decision was entered. As such, to the extent that the Plaintiff's May 9th "Letter-Motion" sought relief pursuant to either Rule 60(b)(1), 60 (b)(2), or 60(b)(3), we are without authority to grant such relief. "Rule 60(b) specifically provides that a motion for relief from judgment may be made `for reasons (1), (2), and (3) not more than one year after the judgment . . . was entered.' This limitations period is `absolute'. . . ." Warren v. Garvin (2d Cir.) 219 F.3d 111, 114, cert. denied (2000) 531 U.S. 968. "A court has no power to grant [such] motions that are filed late." 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 60.65 [2] [a], at 60-200 (3d ed. 1999) (alteration added). Moreover, to the extent that the Plaintiff's May 9th "Letter-Motion" sought relief from judgment pursuant to Rules 60(b)(4), 60(b)(5), and 60(b)(6), which must be made "within a reasonable time," see FED.R.CIV.P. 60(b), the new facts presented in the June 3rd supplemental letter are also of little help to the Plaintiff. Even were we to discount the time period from December 2001 through May 15, 2002 as the Plaintiff requests, the Plaintiffs original May 9th "Letter-Motion" for Rule 60(b) relief was still filed fourteen months after we granted summary judgment in favor of the Defendants. Accordingly, that motion was not brought within a reasonable time. See Young v. Coughlin (S.D.N.Y. Sept. 24, 2001) 2001 WL 1230836, *2 (holding that a pro se plaintiffs fourteen month delay in bringing a Rule 60(b) motion was unreasonable).
Finally, even if the considerations in the June 3rd supplemental letter persuaded us that the original May 9th "Letter-Motion" had been made within a reasonable time, that motion does not merit the relief requested. When read together, the May 9th and May 22nd "Letter-Motions" assert that our Memorandum and Order granting summary judgment should be vacated on the grounds that the Plaintiff has discovered new evidence (i.e. the April 1985 letter) and purportedly did not receive a copy of our Memorandum and Order. Neither of those asserted bases for relief fall within the scope of either Rule 60(b)(4) or Rule 60(b)(5), which allow relief from a judgment only where that "judgment is void" or has been "satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." See FED.R.CIV.P. 60(b)(4)-(5). As such, the remaining question before us is whether the Plaintiff may secure the relief he seeks through the auspices of Rule 60(b)(6), the catch-all provision which allows relief from judgment for "any other reason justifying relief from the operation of the judgment." See FED.R.CIV.P. 60(b)(6).
Initially, we note that the first ground the Plaintiff advances to vacate the summary judgment (i.e. the April 1985 letter he recently found) is not the proper subject of a motion for relief under Rule 60 (b)(6). The Plaintiffs attempt to rely on such recently discovered evidence falls directly within the ambit of Rule 60(b)(2), which specifically allows for relief from a judgment on the basis of "newly discovered evidence." See FED.R.CIV.P. 60(b)(2). As the Second Circuit has explained, "Rule 60(b)(2) only applies if the reasons offered for relief from judgment are not covered under the more specific provisions of Rule 60(b)(1)-(5) . . . In particular, Rule 60(b)(6) may not be used to circumvent the 1-year limitations period that governs" such other provisions. Warren, 219 F.3d at 114. Since the newly found April 1985 letter falls directly within the specific scope of Rule 60(b)(2) and the Plaintiff did not file a motion for relief from judgment on the basis of that letter within the 1-year limitations period which governs that provision, he may not now seek to use Rule 60(b)(6) to circumvent the limitations period.
In light of this consideration, Rule 60(b)(6) may only be applied to the second argument that the Plaintiff advances to vacate the summary judgment (i.e. his purported non-receipt of our summary judgment decision). Yet, as we have already discussed, the Plaintiff may only secure such relief under Rule 60(b)(6) where he has made "an independent demonstration of `diligent effort' in monitoring the suit." Orshan, 105 F.R.D. at 539. Since the record reflects that the Plaintiff failed to make the requisite diligent effort, the Plaintiff cannot establish the affirmative diligence necessary to warrant Rule 60(b)(6) relief.
Even if Rule 60(b)(6) were applied, inappropriately, on the basis of the recently discovered April 1985 letter, the Plaintiffs failure to demonstrate the requisite affirmative diligence would equally bar him from securing Rule 60(b)(6) relief on the basis of that letter.
In sum, the Plaintiff has advanced new facts and arguments which are not the appropriate subject matter of a motion for reconsideration. Moreover, even if these new facts and arguments were taken into account and reconsideration were granted, they would still not warrant relief under the provisions of Rule 60(b). Accordingly, we deny the Plaintiffs May 22, 2002 "Letter-Motion."
SO ORDERED.