Tyus v. Wright et al
ORDER denying 140 Motion for relief from final judgment under Rule 60(b). Signed by Chief Judge William H. Steele on 11/5/2014. Copy mailed to Plaintiff. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION 08-0370-WS-C
This matter is before the Court on the plaintiff’s motion for relief from final
judgment under Rule 60(b). (Doc. 140). The Court ordered the plaintiff to file a brief in
support of his motion, (Doc. 141), which he has done, (Doc. 144), and the motion is ripe
In February 2011, the Magistrate Judge issued a report and recommendation
(“R&R”) that the plaintiff’s action be dismissed with prejudice for failure to state a claim
and for frivolousness. (Doc. 111 at 17). In March 2011, the Court adopted the R&R and
dismissed the action with prejudice. (Docs. 113-14).
Rule 60(b) provides that a Court “may relieve a party … from a final judgment”
for certain specified reasons. The only reason the plaintiff offers as to why he should be
relieved from final judgment is that he “was mentally and physically unable to answer
and [sic] court order due to injuries sustained from defendant.” (Doc. 144). That
explanation eliminates Rules 60(b)(1)-(5) as possible bases of his motion and limits him
to Rule 60(b)(6), which permits relief from judgment for “any other reason that justifies
“Relief under this clause [Rule 60(b)(6)] is an extraordinary remedy which may be
invoked only upon a showing of exceptional circumstances.” Crapp v. City of Miami
Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (internal quotes omitted). “The party
seeking relief has the burden of showing that absent such relief, an ‘extreme’ and
‘unexpected’ hardship will result.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th
Cir. 1984). Assuming without deciding that health issues can constitute an exceptional
circumstance under Rule 60(b)(6), the plaintiff has failed to meet his burden of showing
that health issues prevented him from prosecuting his claim.
Between August 2008 and May 2010, the plaintiff filed at least 28 separate filings.
(Docs. 22-27, 30, 35, 38-43, 46-48, 51, 57, 59-60, 63-65, 69-71, 73). Between June and
August 2010, he filed seven more. (Docs. 80-82, 87-90). And between October 14 and
December 29, 2010, the plaintiff filed another ten filings. (Docs. 94-100, 105-07). These
filings reflect an unusual zeal in the prosecution of the plaintiff’s action.
About the time the R&R was issued and the order and judgment were entered, the
plaintiff filed a motion for physical and mental examination, stating that, “due to illness,
[the plaintiff] was unable to understand I was to come to court, I’m asking for another
court date, I do not understand all of the Joint Pretrial Documents due to my illness.”
(Doc. 115). This may be evidence that the plaintiff considered himself hindered by
health issues, but it does not reflect that he truly was rendered incapable of prosecuting
his lawsuit. On the contrary, a few weeks later, the plaintiff filed a timely notice of
appeal, and shortly thereafter he completed a transcript information form. (Docs. 119,
In Olmstead v. Humana, Inc., 154 Fed. Appx. 800 (11th Cir. 2005), the plaintiff
sought relief from judgment under Rule 60(b)(6) because he had “needed to resolve the
unexpected recurrence of an opportunistic infection (‘OI’) and onset of a new OI.” Id. at
806 (internal quotes omitted). The Court held that this assertion could not support relief
under Rule 60(b)(6) because the plaintiff “failed to present evidence showing, or even to
explain, why he could not … have moved for a stay in the proceedings” until his health
issues were resolved. Id. (internal quotes omitted). The plaintiff “thus, failed to show
that these circumstances were extraordinary.” Id. (internal quotes omitted). The multiple
filings of the plaintiff as noted above, including around the time of the R&R, order and
judgment, and in connection with his appeal, all reflect that the plaintiff had the ability to
seek a stay of the proceedings or an extension of time; having failed to do so, he cannot
obtain relief under Rule 60(b)(6).
A motion under Rule 60(b)(6) must be filed “within a reasonable time.” Fed. R.
Civ. P. 60(c)(1). What is a “reasonable time” depends on the circumstances, including
“whether the parties have been prejudiced by the delay and whether a good reason has
been presented for failing to take action sooner.” BUC International Corp. v.
International Yacht Council Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008) (internal quotes
omitted). The record reflects that the plaintiff was perfectly capable of filing the instant
motion in 2012, over two years before he did so. In June 2011, the Eleventh Circuit
dismissed the plaintiff’s appeal for failure to file an appellate brief. (Doc. 122). Between
April 26 and September 6, 2012, the plaintiff made nine different filings in this action, all
in an effort to obtain appellate review. (Doc. 124-25, 127-31, 133, 135). The plaintiff’s
ability to so vigorously seek such review in 2012 demonstrates that he could have filed
the instant motion in 2012 as well. Because the Court had informed the plaintiff that an
appeal was no longer possible, (Docs. 126, 130, 132), the plaintiff had every incentive to
file a Rule 60(b)(6) motion in 2012 but elected not to do so.
The defendant, who is an individual former law enforcement officer being sued
over an incident that allegedly occurred in 2006, (Doc. 22), presumably would be
prejudiced by allowing the plaintiff to reinstate his case over 3½ years after it was
dismissed. But even if he were not, the plaintiff’s gross, unexcused delay in filing the
instant motion would support the conclusion that it was not filed within a reasonable
time. See Diggs v. Mitchem, 2014 WL 4202476 at *3 (S.D. Ala. 2014) (citing cases).
In summary, the plaintiff’s Rule 60(b)(6) motion is untimely and also fails on its
merits. For the reasons set forth above, his motion for relief from final judgment is
DONE and ORDERED this 5th day of November, 2014.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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