Opinion
Civil Action 18-cv-03165-PAB-SKC
12-21-2023
DELMART E.J.M. VREELAND, II, Plaintiff, v. VANESSA CARSON. Defendant.
RECOMMENDATION RE: DKT. 390
S. Kato Crews, United States Magistrate Judge.
Before the Court on referral is Plaintiff's Motion for Relief from Judgment under Rule 60(b)(6). Dkt. 390. The Court has carefully considered and liberally construed the Motion, and has considered Defendant Carson's Response opposing the same, Dkt. 406. The Court RECOMMENDS the Motion be DENIED.
Plaintiff seeks relief from Chief Judge Brimmer's March 29, 2022 Order which granted Defendant Correctional Health Partners' Motion to Dismiss Plaintiff's Third Amended Complaint (Dkt. 243); granted Defendants Hall and Evans, LLC., Andrew Ringel and Laura Pearson's Motion to Dismiss Plaintiff's Third Amended Complaint (Dkt. 245); granted the State Defendants' Partial Motion to Dismiss Plaintiff's Third Amended Complaint (Dkt. 249); and granted in part and denied in part “MPU Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) C.R.S. § 13-20-602” (Dkt. 240). Dkt. 306. Judge Brimmer also ordered that (1) Plaintiff's first claim for deliberate indifference and third claim for medical malpractice are dismissed with prejudice against all defendants; (2) his second claim for deliberate indifference is dismissed as against defendants Dr. Maul, Theodore Laurence, Vanessa Carson, and Lindsay Gouty; (3) defendants Desiree Vigil, Theodore Laurence, Jammie Fellhauer, Linda Paro, Lisa Hanks, Lindsay Gouty, Mountain Peaks Urology, Dr. Maul, Jennifer Harrigan, Ashley Reeder, Carley Davies, Brandy Kneski, CHP, Hall & Evans, LLC, Andrew Ringle, Laura Pearson, Kristin Ruiz and Julie Tolleson are dismissed from this action; and (4) Plaintiff's second claim for deliberate indifference, only against defendant Dr. Harrigan, and Plaintiff's claim for a violation of his Fourth Amendment Rights against defendant Carson would remain in this action. Id.
Plaintiff and Dr. Harrigan filed a stipulation to dismiss on May 31, 2023. Dkt. 407. Judge Brimmer finalized Dr. Harrigan's dismissal from the case on June 6, 2023. Dkt. 409. Thus, any request to revive Plaintiff's deliberate indifference claim is MOOT.
In his Order, Judge Brimmer noted Plaintiff failed to respond to the motions to dismiss by his February 1, 2022, extended deadline. Id. at p.6. Plaintiff now seeks relief under Fed.R.Civ.P. 60(b) arguing: (1) his failure to file responses to the motions to dismiss “was the direct fault of State actors” because Plaintiff was transferred out of Colorado after the four motions were filed and he “had no way to litigate the case[,]” and he was then “placed back into transport status” from January 3, 2022, until the end of February 2022; (2) had Plaintiff been able to file responses, “the Court may not have dismissed claims and defendants[;]” and (3) he has since obtained evidence in or about April 2023 that this case was being litigated without the knowledge of Defendant Carson and “other named defendants” and he obtained evidence at a deposition “which proved civil rights violation by named defendants[.]” See generally Dkt. 390.
The Federal Rules of Civil Procedure do not specifically provide for motions for reconsideration, see Hatfield v. Bd. of County Comm'rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995), and, where, as here, a party files a motion for reconsideration prior to the entry of judgment or a final order, Rules 60(b) does not apply. Houston Fearless Corp. v. Teter, 313 F.2d 91, 92 (10th Cir. 1962). Such motions instead fall under the court's plenary power to revisit and amend interlocutory orders as justice requires. See Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.1980). That said, courts in this district sometimes apply Rule 60(b) principles to reconsider interlocutory orders for efficiency's sake. Browne v. City of Grand Junction, No. 14-cv-00809-CMA, 2014 WL 1151955, at *1 (D. Colo. Mar. 21, 2014) (citing cases).
The Court recommends finding there is no basis under Rule 60(b) or otherwise to revisit Judge Brimmer's prior Order. First, Judge Brimmer did not grant the motions to dismiss based on Plaintiff's failure to respond. The Order is instead based on Judge Brimmer's detailed analysis of the allegations pleaded in the operative complaint and his conclusion that those allegations failed Rule 12(b)(6).
Second, while Plaintiff contends his transfer out of Colorado and subsequent “transport status” prohibited his ability to meet his February 1, 2022, filing deadline, the docket shows Plaintiff filed nine documents between March 29 and August 26, 2021.Dkts. 254, 255, 266, 268, 271, 282, 284, 286, and 289. At no time among these nine filings did he request additional time to respond to the motions to dismiss based on his transfer from Colorado or subsequent transport. And the record shows he had just under four months to prepare and file responses before his July 2021 transfer to Wyoming (Dkt. 282), and approximately another four months from his last filing on August 26, 2021, to his being placed back in “transport status” on January 3, 2022, to work on and file his responses.
The Motions to Dismiss were filed on March 15 and 17, 2021. Dkts. 240, 243, 245, and 249.
Third, the Court agrees with Defendant Carson that the information Plaintiff claims to have newly discovered is vague. Further, that information has no bearing on Judge Brimmer's findings regarding the deficiencies in the operative complaint as actually pleaded.
And fourth, to the extent applicable, the Motion is untimely under Rule 60(c)(1). For all of these reasons, the Court does not find Plaintiff has shown exceptional circumstances warranting the extraordinary relief Rule 60(b) affords. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000) (“A district court has discretion to grant relief as justice requires under Rule 60(b), yet such relief is extraordinary and may only be granted in exceptional circumstances.” (cleaned up).
Plaintiff has not shown excusable neglect nor any other reason under Rule 60(b), or otherwise, supporting the relief he seeks. The Court RECOMMENDSthe Motion be DENIED as a result.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).