Davis v. Miser

Filing 48

ORDER denying 36 Motion to Set Aside Judgment and Plaintiff's other Motions 40 , 46 . This case is closed. Plaintiff shall not file further motions. Signed by Senior Judge David G Campbell on 8/14/19. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Davis,
Plaintiff,

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ORDER

v.

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No. CV08-0679 PHX-DGC

Allen Miser,

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Defendants.

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Pro se Plaintiff Michael Davis has moved to set aside the Court’s judgment entered

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more than 10 years ago. Doc. 36. The motion is fully briefed. Docs. 38, 42. Plaintiff has

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filed two additional motions seeking related relief. Docs. 40, 46. Defendant Allen Miser

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has filed response briefs (Docs. 43, 47), and Plaintiff filed one reply (Doc. 45). Plaintiff

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requests a hearing, but oral argument will not aid in the Court’s decision. Fed. R. Civ. P.

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78(b); LRCiv 7.2(f). The Court will deny Plaintiff’s motions.

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On April 7, 2008, Plaintiff – an ADOC inmate and Seventh Day Adventist – filed a

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civil rights complaint against Defendant Miser – a chaplain for the Arizona Department of

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Corrections (“ADOC”) – alleging that he was denied a vegetarian religious diet. Doc. 1

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at 4. The parties entered into a settlement agreement (“the Settlement”) whereby the

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ADOC agreed to provide Plaintiff a lacto-vegetarian diet, but reserved its “right to revise

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its dietary plans.” Doc. 38-1 at 7. The parties stipulated to dismissal with prejudice of

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Plaintiff’s suit. Doc. 27. In a January 2009 order, the Court stated: “This matter having

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come before the Court on the stipulation of the parties; IT IS ORDERED dismissing this

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action with prejudice.” Doc. 28.

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Plaintiff moves to set aside or reopen the Court’s judgment pursuant to

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Rule 60(b)(6) because his lacto-vegetarian diet has been changed to a vegan diet. Doc. 36

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at 1. He claims that the switch is a breach of the Settlement. Id.

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Under Rule 60(b)(6), the Court may relieve a party of final judgement for any

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“reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “Only ‘extraordinary circumstances’

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justify relief under Rule 60(b)(6).” Hermetic Order of Golden Dawn, Inc. v. Griffin, 400

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F. App’x 166, 167 (9th Cir. 2010) (brackets omitted); see also United States v. Sparks, 685

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F. 2d 1128, 1129 (9th Cir. 1982). Repudiation of a settlement agreement constitutes an

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extraordinary circumstance and justifies vacating the court’s prior dismissal order.”

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Keeling v. Sheet Metal Workers Int’l Ass’n, Local Union 162, 937 F.2d 408, 410 (9th Cir.

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1991). To obtain relief, however, the repudiation must amount to “complete frustration”

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of the agreement. Id. at 410-11.

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Plaintiff alleges that the ADOC did away with his lacto-vegetarian diet and instead

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provided him with a vegan “Muslim” diet, which is not the diet the ADOC agreed to

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provide. Doc. 36 at 2. According to Plaintiff, this change does not constitute a revision of

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dietary plans, consistent with the Settlement. Id. The ADOC responds that the vegan diet

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is the religious diet designed for those inmates who avoid meat or animal products for

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religious reasons. Doc. 38 at 4. The ADOC also asserts that it changed the diet in

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accordance with the Settlement provision that reserved its right to change dietary plans.

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Id.

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Settlement, particularly the meaning of ADOT’s right to change dietary plans, does not

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amount to a complete repudiation of the Settlement that warrants relief under Rule

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60(b)(6). See Hermitic Order of Golden Dawn, 400 F. App’x at 167; Naylon v. Wittrig,

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No. 3:08-cv-00625-LRH-WGC, 2017 WL 1745033, at *1 (D. Nev. May 3, 2017); Joe

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Hand Promotions, Inc. v. Rangee, No. 2:13-cv-00939-MCE-CKD, 2013 WL 6859001, at

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*3 (E.D. Cal. Dec. 24, 2013).

The disagreement between Plaintiff and the ADOC over interpretation of the

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Further, no law “provides for jurisdiction of the court over disputes arising out of

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an agreement that produces a [stipulated dismissal].” Kokkonen v. Guardian Life Ins. Co.

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of Am., 511 U.S. 375, 378 (1994). “[A] federal court has jurisdiction to enforce a settlement

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agreement in a dismissed case when the dismissal order incorporates the settlement terms,

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or the court has retained jurisdiction over the settlement contract[,]” and a party alleges a

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violation of the settlement. Id. Under those circumstances, a breach of the agreement is a

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violation of the court’s order and the court has jurisdiction to enforce the agreement.

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Kokkonen, 511 U.S. at 381. In this case, however, the Court did not incorporate the terms

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of the Settlement in its dismissal order. See Doc. 28. Nor did the Court retain jurisdiction

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over the settlement agreement. Id.; Doc. 38-1 at 6-10.

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Plaintiff’s other motions will be denied as well. Plaintiff’s motion for an order to

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make legal calls, and his motion for an order to allow Plaintiff the proper paperwork to

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exhaust administrative remedies, cannot be made without a pending action in this court and

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would be, in any event, beyond the scope of the issues raised in Plaintiff’s previous lawsuit.

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IT IS ORDERED:

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1.

Plaintiff’s motion to set aside the Court’s judgment (Doc. 36) is denied.

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2.

Plaintiff’s other motions (Docs. 40, 46) are denied.

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3.

This case is closed. Plaintiff shall not file further motions.

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Dated this 14th day of August, 2019.

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