Lori Irish v. U.S. Department of Justice, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Kermit E. Bye, Raymond W. Gruender and Bobby E. Shepherd (UNPUBLISHED) [4150013] [13-1740]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1740
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Lori Irish
lllllllllllllllllllll Plaintiff - Appellant
v.
United States Department of Justice; Federal Bureau of Prisons; Officer Pena;
Lieutenant Duncan; Lieutenant Omelson; Unknown Federal Bureau of Prison
Employees; Officer G. Duffy
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: April 7, 2014
Filed: May 2, 2014
[Unpublished]
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Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In September 2011, Lori Irish, then an inmate at the Federal Correctional
Center in Waseca, Minnesota, filed an action raising claims under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the

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Federal Tort Claims Act. The district court adopted the magistrate judge’s
recommendation to grant defendants’ motion for summary judgment, and
subsequently denied Irish’s post-judgment motion seeking reconsideration of the
summary judgment order. Irish has timely appealed both orders. We conclude that
the denial of Irish’s post-judgment motion was an abuse of discretion, because Irish
did not receive the memorandum and evidence defendants filed in support of their
motion. See Sanders v. Clemco Indus., 862 F.2d 161, 168-69 (8th Cir. 1988)
(reviewing denial of Fed. R. Civ. P. 60(b) motion for abuse of discretion; discussing
self-styled motions for reconsideration).
Defendants’ motion consisted of a two-page “Motion to Dismiss or for
Summary Judgment,” supported by a forty-page memorandum, six declarations, and
over one hundred pages of exhibits. The district court docket sheet reflects the
motion and supporting documents were all filed on May 23. Also on May 23,
defendants filed a certificate of service which stated that the supporting documents
had been mailed to Irish on May 23 at her then-current address in Las Vegas. On
May 30, defendants filed another certificate of service which stated that the motion
itself had been mailed to Irish, at the same address, on May 30. After informing the
court she had not received defendants’ motion, Irish was given additional time to
respond, and eventually filed a two-page opposition to defendants’ motion, appearing
to address the statements made in the motion itself.
The magistrate judge’s January 3, 2013, report, which recommended granting
defendants’ motion, notified the parties that objections had to be made by January 17.
Irish’s request for additional time to file objections was denied, and the district court
adopted the magistrate judge’s report and entered judgment. Irish then filed her postjudgment motion, in which she stated, as relevant, that she was confused by the
magistrate judge’s reference to witness statements and evidence she had not seen; that
she had been unable to figure out what was going on in the short period of time
between the report and the district court’s order; but that she had obtained electronic
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access to the court’s docket and would try to determine if documents had been filed
she had not seen. The district court denied her motion.
We conclude, as further illustrated by Irish's filings on appeal, that a question
of fact exists as to whether Irish in fact received a copy of the documents filed by
defendants in support of their summary judgment motion, such that the denial of
Irish’s motion to vacate the summary judgment order was an abuse of discretion. See
Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63-64 (8th Cir. 1993)
(concluding interests of justice required consideration of new evidence not before
district court where district court “suffered under a misconception that prevented a
genuine application of [its] discretion to all facets of this case”). Irish has explained
that she initially received none of the materials sent, that she notified defendants’
counsel on May 30 that she had not received the motion, and that she then received
only the two-page motion to dismiss or for summary judgment, to which she
responded in kind. While defendants filed a certificate stating that they mailed the
supporting documents to the correct address on May 23, Irish has provided an
affidavit stating that she received only the two-page motion, and would have filed a
more comprehensive response had she received the supporting documents.
Defendants have not disputed Irish’s statement that she notified defense counsel on
May 30 that she had not received the motion, and defendants’ May 30 certificate of
service indicates that they mailed to Irish the motion (only) on May 30. These
circumstances are sufficient to rebut any presumption that Irish received the
documents defendants mailed on May 23. See Kerr v. Charles F. Vatterott & Co.,
184 F.3d 938, 947 (8th Cir. 1999) (recognizing general rebuttable presumption that
properly mailed document is received).
We reverse the district court’s order denying reconsideration, and we vacate
the order granting summary judgment. On remand, the district court shall order that

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a complete set of summary judgment materials be sent to Irish and give her a
reasonable amount of time to prepare a response to the motion for summary judgment.
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