Opinion
Case No. 01-3314-JWL
May 28, 2003.
MEMORANDUM AND ORDER
Plaintiff Edmund C. Jones, proceeding pro se, originally brought a Bivens action, alleging that defendants ("the prison officials") violated his rights under the United States Constitution by subjecting him to excessive force and, thereafter, by depriving him of recreation time, drinks, and supplies.
The court dismissed the complaint without prejudice because Mr. Jones failed to exhaust fully both of his constitutional claims. Specifically, the court found that Mr. Jones exhausted fully his administrative remedies as to his excessive force claim, but failed to exhaust fully his "denial of benefits" claim. The court further found that the Prison Litigation Reform Act (the "PLRA") imposes a rule of total exhaustion, mandating the dismissal of the entire complaint.
The matter is before the court on Mr. Jones' motion for reconsideration and clarification (Doc. 55). He contends that the court should grant relief under Federal Rule of Civil Procedure 60(b) because the prison officials prevented him from exhausting fully his "denial of benefits" claim. The court denies the motion because he has failed to demonstrate that he is entitled to relief under any of the grounds contemplated under Fed.R.Civ.P. 60(b).
Mr. Jones also seeks to clarify the status of his Amended Motion for an Order Directing Defendants to Seek New Counsel (Doc. 49). On January 31, 2003, Magistrate Judge Waxse issued a memorandum and order denying that motion. On February 3, 2003, this court granted the prison officials' motion for summary judgment. In that memorandum and order, the court also denied all other pending motions. The court inadvertently included Doc. 49 among the list of Mr. Jones' pending motions. The court clarifies that Magistrate Judge Waxse's January 31, 2003 opinion, not this court's memorandum and order on summary judgment, controls the disposition of Mr. Jones' motion.
BACKGROUND
On July 30, 2001, Mr. Jones filed his Bivens action, alleging that Officers Theodoroff, Miller and Williams assaulted him without provocation. After the initial use of force, Mr. Jones alleged that Officer Theodoroff denied him access to recreation time, drinks and other supplies. In Section III of his complaint, Mr. Jones acknowledged that the Bureau of Prisons ("BOP") had established a prison grievance procedure, which he exhausted fully. Interestingly, Mr. Jones did not allege that prison officials had engaged in any conduct that prevented him from completely exhausting his denial of benefits claim.On September 25, 2002, the prison officials filed a motion to dismiss or, in the alternative, for summary judgment. Therein, the defendants set forth material facts demonstrating that Mr. Jones failed to appeal his administrative grievance to the General Counsel in the Central Office, as contemplated by the BOP's administrative procedures. The court reviewed the motion under the summary judgment standard because the prison officials included a concise statement of material facts as to the exhaustion issue and Mr. Jones attached his own affidavit "in opposition to summary judgment."
Additionally, on October 2, 2002, the court issued an order directing Mr. Jones to respond to the motion on or before October 28, 2002. Within that order, the court advised Mr. Jones that he could not rest upon the mere allegations in his complaint, but instead, was required to set forth specific facts showing that there is a genuine issue for trial. The court specifically informed Mr. Jones that a response under oath was necessary.
On November 4, 2002, Mr. Jones filed his response. He argued that the PLRA's exhaustion requirement did not apply to his claims and that he had exhausted fully all available administrative remedies. Mr. Jones' response also contained vague and conclusory statements implying that the prison officials prevented him from exhausting his administrative remedies. Mr. Jones did not allege nor offer any evidence that he exhausted his final administrative remedy by requesting that the General Counsel in the Central Office review his"denial of benefits" grievance.
For example, in the "Overview" of his response, Mr. Jones states that "[c]learly the defendants cannot claim that the plaintiff did not exercise a right when the failure to exercis[e] that right is based on the acts and actions of the defendants which may have prevented him from exercising those rights." Similarly, in his response to the prison officials' exhaustion argument he states that "the plaintiff has exhausted all remedies relative to his claim and is not required to exhaust those remedies that are not available to him or were made unavailable to him by actions of the defendants or their agents."
On February 3, 2003, the court granted the prison officials' motion for summary judgment and dismissed Mr. Jones' complaint and other pending motions, without prejudice. The court found that the PLRA's exhaustion requirement applied to Mr. Jones' Bivens action and that it imposed a rule of total exhaustion. The court further found that Mr. Jones failed to demonstrate a genuine issue of material fact on the exhaustion issue. The court entered judgment on February 5, 2003.
On February 28, 2003, Mr. Jones filed a motion for reconsideration and clarification. Therein, he explains that "it cannot be disputed that the administrative remedy was not exhausted . . .," but that the prison officials were the cause for this failure. Specifically, he alleges that prison officials, as part of an ongoing pattern of harassment, refused to provide him with the proper paperwork to complete his administrative appeals.
STANDARD
It is unclear whether Mr. Jones filed his motion for relief from judgment under Federal Rule of Civil Procedure 59 or 60. These federal rules permit a party subject to an adverse judgment to file either a motion for relief from the judgment pursuant to Rule 60(b) or a motion to alter or amend the judgment pursuant to Rule 59(e). Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995). If a motion is filed within ten days of the district court's entry of judgment, then the court normally treats it as a Rule 59(e) motion to alter or amend the judgment. Id. If the motion is filed more than ten days after entry of judgment, then the court must treat it as a Rule 60(b) motion for relief from judgment. Id.
In this action, the court entered judgment on February 5, 2003. Mr. Jones did not file his motion until February 28, 2003, well past the 10-day time limit for filing a Rule 59(e) motion. As such, the court is required to construe the filing as a motion for relief from judgment pursuant to Rule 60(b). Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (holding that plaintiff's motion must be construed as one pursuant to Rule 60(b) where plaintiff failed to file within 10 days of the district court's judgment).
"[R]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996) (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)); see also Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). A party can show exceptional circumstances "by satisfying one or more of Rule 60(b)'s six grounds for relief from judgment." Van Skiver, 952 F.2d at 1243-44. Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment 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; or (6) any other reason justifying relief from the operation of the judgment.
ANALYSIS
Mr. Jones contends that he is entitled to relief from judgment because the prison officials prevented him from exhausting fully his administrative remedies. Mr. Jones did not recite any of the exceptional circumstances warranting relief under Rule 60(b), nor does the court's reading of the parties' papers and the record disclose the existence of any such circumstances. This fact alone warrants the denial of Mr. Jones' motion. Van Skiver, 952 F.2d at 1243 (noting that the "court need not, and does not, address the merits of the motion to reconsider [when] the plaintiffs have failed to demonstrate any basis for Rule 60(b) relief"). Even so, the court, construing the motion in the light most favorable to Mr. Jones given his pro se status, Van Skiver, 952 F.2d at 1244 (citing Haines v. Kerner, 404 U.S. 519 (1972)), will analyze his motion as if relief had been invoked under either Rule 60(b)(1), (b)(2), (b)(3), or (b)(6).
Mr. Jones also contends that it would be futile to exhaust because the time for filing his grievance has expired. The Supreme Court, however, has refused to read futility or other exceptions into the PLRA's exhaustion requirement. Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). Indeed, "Congress has eliminated both discretion to dispense with administrative exhaustion and the condition that it be plain, speedy, and effective." Jernigan v. Stuchell, 304 F.3d 1030, 1032. As such, the Tenth Circuit has refused to recognize an exception to the PLRA's exhaustion requirement where a prisoner's time for filing a grievance has expired. Hamby v. Jordan, 55 Fed. Appx. 887, 888, 2003 WL 294425, at *1 (10th Cir. Feb. 7, 2003); see also Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (holding that a prisoner cannot abandon the administrative grievance process before completion and then argue that he has exhausted his or her remedies or that it is futile to do so because the grievance is now time-barred under the BOP regulations). The court, therefore, rejects Mr. Jones' futility argument.
Mr. Jones' motion cannot be construed, even under the favorable standard for pro se pleadings, as a motion for relief under Rule 60(b)(3) or (b)(4) because there are no allegations or evidence of void judgment or satisfaction of judgment. As such, the court will limit its review to claims for relief under Rule 60(b)(1), (b)(2), (b)(3), and (b)(6).
I. Mistake, Inadvertence, Surprise, or Excusable Neglect
A party may obtain relief from judgment based on "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1). The "mistake" provision in Rule 60(b)(1) provides for the reconsideration of judgments only where: (1) a party has made an excusable litigation mistake or an attorney in the litigation has acted without authority from a party, or (2) . . . the judge has made a substantive mistake of law or fact in the final judgment or order. Cashner, 98 F.3d at 576.
In his motion for reconsideration, Mr. Jones does not allege that any litigation mistakes occurred. Similarly, he does not suggest that the court made a substantive mistake of law or fact. Indeed, Mr. Jones acknowledges that he failed to exhaust completely his administrative remedies as to his denial of benefits claim and does not dispute the court's legal finding that the PLRA imposes a rule of total exhaustion. Instead, he contends that the prison officials interfered with his ability to exhaust his administrative remedies. Mr. Jones had ample opportunity to set forth evidence in support of these allegations on summary judgment, but did not do so. The Tenth Circuit has noted that the proper purpose of a motion to reconsider is not to revisit "the issues already addressed" or to advance "new arguments or supporting facts which were otherwise available for presentation when the original . . . motion was briefed." Van Skiver, 952 F.2d at 1243 (internal quotations and citations omitted). As such, Mr. Jones is not entitled to relief under Rule 60(b)(1).
II. Newly Discovered Evidence
A party may seek relief from judgment based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Fed.R.Civ.P. 60(b)(2). "A party seeking a new trial on newly discovered evidence must show (1) the evidence was newly discovered since the trial; (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence could not be merely cumulative or impeaching; (4) the newly discovered evidence was material; and (5) that a new trial, with the newly discovered evidence, will probably produce a different result." Joseph v. Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir. 1994) (internal quotes omitted).
Even if the court were to accept Mr. Jones' allegations as true, he was aware of the prison officials' alleged misconduct long before he filed his complaint. Thus, evidence supporting those allegations, if it exists, would have been available to Mr. Jones long before he filed his motion for relief from judgment. As such, he is not entitled to relief under Rule 60(b)(2). Flores v. United States Repeating Arms Co., Inc., 19 Fed. Appx. 795, 800-01, 2001 WL 1135301, at *5 (10th Cir. Sep. 26, 2001) (finding that evidence submitted in plaintiffs' Rule 60(b) motion cannot be considered "newly discovered" under Rule 60(b)(2) when moving party could have acquired it earlier had they been properly diligent).
III. Fraud, Misrepresentation or Misconduct of Adverse Party
A party may be entitled to relief from judgment based on fraud, misrepresentation or misconduct of an adverse party. Fed.R.Civ.P. 60(b)(3). "When alleging a claim of fraud on the court, the plaintiff must show by clear and convincing evidence that there was fraud on the court, and all doubts must be resolved in favor of the finality of the judgment." Weese v. Schukman, 98 F.3d 542, 552 (10th Cir. 1996). "Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated will constitute a fraud on the court." Id. at 552-53. "Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court." Id. at 553.
Mr. Jones is not entitled to relief under this section. First, his motion for reconsideration is based entirely on vague and general allegations suggesting that the prison officials interfered with his attempts to exhaust. Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999) (noting that relief under Rule 60(b)(3) may be granted only when the motion is substantiated by clear and convincing evidence that the defendants acted with an intent to deceive or defraud the court, by means of a deliberately planned and carefully executed scheme). Even if Mr. Jones could establish that prison officials interfered with his attempt to exhaust, such conduct did not prevent him from offering these facts in response to the defendants' motion for summary judgment. Flores v. United States Repeating Arms Co., Inc., 19 Fed. Appx. 795, 800, 2001 WL 1135301, at *5 (10th Cir. Sep. 21, 2001) (citing Anderson v. Dep't of Health Human Servs., 907 F.2d 936, 952 (10th Cir. 1990) (explaining that movant must show that the alleged misrepresentations prevented him from fully and fairly presenting his case to prevail under Rule 60(b)(3)). As such, Mr. Jones is not entitled to relief under Rule 60(b)(3).
IV. Other Reasons Justifying Relief
Rule 60(b)(6) permits the court to relieve a party from final judgment for "any other reason justifying relief." Fed.R.Civ.P. 60(b)(6). The Tenth Circuit has described Rule 60(b)(6) as a "grand reservoir of equitable power to do justice in a particular case." Cashner, 98 F.3d at 579 (further citations omitted). This court, however, "may grant a Rule 60(b)(6) motion only in extraordinary circumstances and only when necessary to accomplish justice." Id. (further citations omitted). The Tenth Circuit has found such extraordinary circumstances to be present, for example, when, after entry of judgment, "events not contemplated by the moving party render enforcement of the judgment inequitable." Id. (citing Zimmerman v. Quinn, 744 F.2d 81, 82-83 (10th Cir. 1984) and State Bank v. Gledhill, 76 F.3d 1070, 1081 (10th Cir. 1996) as illustrative examples).
Mr. Jones' asserted grounds for relief is not based on any change in circumstances that occurred since entry of judgment. Moreover, Mr. Jones has not raised any facts or issues that are so "unusual or compelling" that extraordinary relief is warranted or that it would offend justice to deny such relief. Cashner, 98 F.3d at 580. Accordingly, Mr. Lee is not entitled to relief under Rule 60(b)(6) and his motion must be denied.
IT IS THEREFORE ORDERED BY THE COURT that Mr. Jones' motion for reconsideration and clarification (Doc. 55) is denied. The court further clarifies that Magistrate Judge Waxse's January 31, 2003 memorandum and order, not this court's memorandum and order on summary judgment, controls the disposition of Mr. Jones' Amended Motion to Seek Order Directing Defendants to Seek New Counsel Based on a Conflict of Interest (Doc. 49).
IT IS SO ORDERED.