Opinion
Case No. 99-3293-JWL
November 14, 2002
MEMORANDUM ORDER
Plaintiff Donald Lee originally filed a Bivens action alleging that defendants retaliated against him for exercising his First Amendment right of access to the courts. The court dismissed Mr. Lee's complaint on August 5, 2002 (Doc. 234), after finding that he was not excused from the requirement to exhaust properly his administrative remedies. The matter is now before the court on Mr. Lee's motion for relief from that judgment (Doc. 239). The court is bound to construe Mr. Lee's motion as a Rule 60(b) motion for relief from judgment. Because Mr. Lee fails to set forth or otherwise satisfy any of the recognized grounds for relief under that rule, the motion is denied.
The court notes that Mr. Lee filed his notice of appeal on September 5, 2002, several days before filing the present motion. As a general rule, a district court is deprived of jurisdiction upon the filing of a notice of appeal. Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998). While neither party has addressed whether the court has subject matter jurisdiction to entertain the present motion, "[i]nsofar as subject matter jurisdiction is concerned, it has long been recognized that a federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every stage of the proceedings." State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1270-71 (10th Cir. 1998) (quoting Tafoya v. United States Dept. of Justice, 748 F.2d 1389, 1390 (10th Cir. 1984)). The Tenth Circuit has held that "[i]n ordinary civil cases the rule is that after an appeal has been taken the district court retains jurisdiction to consider and deny a rule 60(b) motion and, if it indicates that it will grant the motion, the movant may then ask the court of appeals to remand the case so that the district court may act." Blinder, Robinson Co. v. S.E.C., 748 F.2d 1415, 1420 (10th Cir. 1984) (quoting Aune v. Reynders, 344 F.2d 835, 841 (10th Cir. 1965)); see also United States v. 397.51 Acres of Land, 692 F.2d 688 (10th Cir. 1982). Because the court is denying Mr. Lee's Rule 60(b) motion, it is satisfied that it may adjudicate the present matter.
BACKGROUND
On January 29, 2002, the court granted defendant's motion to dismiss Mr. Lee's complaint for failing to exhaust his administrative remedies. Specifically, the court found that Mr. Lee failed to show or allege that he filed a BP-11 with the General Counsel of the Bureau of Prisons as required by administrative regulations.
Administrative regulations require that a prisoner who is not satisfied with the Warden's response to his grievance must first appeal to the appropriate Regional Director. 28 C.F.R. § 542.15(a). If the inmate is not satisfied with the Regional Director's response, he may "submit an Appeal on the appropriate form (BP-11) to the General Counsel" and the "[a]ppeal to the General Counsel is the final administrative appeal." Id.
Mr. Lee moved to amend the judgment, arguing that he filed an administrative complaint with the Central Office, instead of the General Counsel, and that the Bureau of Prison's Rules Handbook ("Rules Handbook" or "Handbook") authorized such procedure. The court granted, in part, Mr. Lee's motion to alter or amend the judgment after concluding that he should be provided the opportunity to present competent Rule 56(e) evidence on the issue of whether the failure to exhaust his administrative remedies should be excused due to the language in the Rules Handbook. On August 5, 2002, the court granted the remaining portions of defendant's motion, without prejudice, finding that the Rules Handbook did not excuse Mr. Lee's failure to exhaust his administrative remedies. Specifically, the court held that the general language in the Handbook was insufficient to excuse Mr. Lee's failure to file a BP-11 with the General Counsel because: (1) the Handbook was provided to all prisoners at the time of admission rather than in response to an inquiry about filing an administrative complaint; (2) Mr. Lee's BP-10 form specifically provided that the BP-11 must be filed with the General Counsel's Office; (3) the BP-11 form indicated that the response would come from the General Counsel; and (4) Mr. Lee presented no evidence that he actually relied on the language in the Rules Handbook.
In Mr. Lee's motion for relief, he argues that the court is in error because he did in fact rely on the language in the Rules Handbook, which suggests that an administrative complaint could be filed with the Central Office. Mr. Lee further alleges that he was unaware of relevant small print on the BP-11 form that would have clarified any ambiguity created in the Rules Handbook.
ANALYSIS
Mr. Lee filed a motion for relief from judgment under Federal Rules of Civil Procedure 59 and 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 judgment was filed on August 5, 2002. Mr. Lee did not file his motion until September 11, 2002, 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.
In the instant action, Mr. Lee 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. Lee's 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. Lee 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) or Rule 60(b)(6). Rule 60(b)(1) permits the court to relieve a party from final judgment for "mistake, inadvertance, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1). The Tenth Circuit has held, however, that generally "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) where the judge has made a substantive mistake of law or fact in the final judgment or order." Cashner, 98 F.3d at 576. When Rule 60(b)(1) is used to challenge a substantive ruling, as in this case, the Tenth Circuit requires that such a motion be filed within the time limit required for the filing of a notice of appeal, id. at 578, and "is available only for obvious errors of law, apparent on the record." Van Skiver, 952 F.2d at 1244 (citing Alvestad v. Monsanto Co., 671 F.2d 908, 912-13 (5th Cir. 1982); Rocky Mountain Tool Mach. Co. v. Tecon Corp., 371 F.2d 589, 596-97 (10th Cir. 1966)). In the instant case, Mr. Lee filed the motion within the 60-day time period required for filing a notice of appeal. Mr. Lee, however, simply alleges that contrary to the court's finding he actually relied on the Rules Handbook in filing his administrative grievance. The court has already discussed and dismissed the issue of whether Mr. Lee reasonably relied on the Rules Handbook, and while Mr. Lee had not previously alleged that he actually relied on the Handbook before filing his grievance, that argument was available to him at the time he responded to defendants' motion. 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. Lee is not entitled to relief pursuant to Rule 60(b)(1).
Mr. Lee's motion cannot be construed, even under the favorable standard for pro se pleadings, as a motion for relief under Rule 60(b)(2) through (b)(4) because there are no allegations or evidence of newly discovered evidence, void judgment, or satisfaction of judgment. As such, the court will limit its review to claims for relief under Rule 60(b)(1) and (b)(6).
Fed.R.App.P. 4(a)(1)(A) requires notice of appeal to be filed within thirty days after entry of a final order. Fed.R.App.P. 4(a)(1)(B), however, provides that "[w]hen the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered." Because at least one of the defendants is an agency of the United States, the 60-day period for filing a notice of appeal applies.
In other words, Mr. Lee did not make any claim of excusable litigation mistake or suggest that his attorney in the litigation acted without authority from a party. Instead, the motion is based upon an alleged substantive mistake of law or fact in the final judgment or order, which, as discussed below, was already addressed by the court in its August 5, 2002 order.
Even if the court accepted Mr. Lee's claim that he did in fact rely on the guidance in the Rules Handbook, such a finding would not entitle him to relief. The court, in its August 5, 2002 order, not only found that Mr. Lee failed to allege or prove that he actually relied on the Rules Handbook, but also found that such reliance could not be reasonable in light of several factors. As such, Mr. Lee's motion fails to identify any mistake in fact or law that would entitle him to relief from the judgment.
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. Lee has not shown or alleged any change in circumstances since entry of judgment that would warrant relief. Moreover, Mr. Lee 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 plaintiff's motion for relief from judgment (Doc. 239) is denied.