Mowry #159208 v. Knight et al

Filing 66

ORDER denying 62 Rule 59 Motion for a New Trial, Alt[e]r or Amend Judg[ ]ment, and or Reopen His Case. See order for details. Signed by Senior Judge Stephen M McNamee on 6/22/2015.(LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arron Eugene Mowry,
Plaintiff,

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No. CV 13-2053-PHX-SMM (MEA)
ORDER

v.
Sergeant Knight, et al.,
Defendants.

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The Court has reviewed Plaintiff’s “Rule 59 Motion for a New Trial, Alt[e]r or

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Amend Judg[]ment, and or Reopen His Case,” which Defendants oppose. (Docs. 62, 64.)

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The Motion will be denied.

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On December 8, 2014, the Court dismissed this action for failure to exhaust

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administrative remedies. (Doc. 60.) Judgment was entered that same day. (Doc. 61.)

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Plaintiff filed his Motion on January 22, 2015, stating that after he received the Court’s

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December 8 Order, he immediately went back and exhausted all administrative remedies.

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Where a party submits a motion after entry of judgment, the only appropriate

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procedural devices are: (1) a motion to alter or amend judgment pursuant to Federal

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Rules of Civil Procedure 59(e); or (2) a motion for relief from judgment pursuant to

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Federal Rules of Civil Procedure 60(b). See, e.g., United States v. Nutri-Cology, Inc.,

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982 F.2d 394, 397 (9th Cir. 1992); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441-42 (9th

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Cir. 1991) (motion to reconsider can be construed as a Rule 60 or Rule 59 motion even

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when movant brings it under local rules and cites no governing Federal Rules of Civil

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Procedure).

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Rule 59(e) of the Federal Rules of Civil Procedure requires that a party serve a

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motion within 28 days after the entry of judgment. The district court does not have

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authority to extend this deadline. Fed. R. Civ. P. 6(b)(2) (“court must not extend the time

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to act under Rules . . . 59(b), (d), and (e)”); see Miller v. Maxwell’s Int’l Inc., 991 F.2d

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583, 585 (9th Cir. 1993) (the district court lacked authority to grant a motion for an

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extension of time to request alteration or amendment of the judgment).

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judgment was entered in this case on December 8, 2014, and Plaintiff did not file his

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Motion within 28 days, the Court cannot consider Plaintiff’s Motion under Rule 59. The

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Because

Court will therefore consider the Motion under Rule 60.

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Under Rule 60(b), a movant may seek relief from a final judgment, order, or

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proceeding for the following reasons: (1) mistake, surprise, or excusable neglect;

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(2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or

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discharged judgment; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b).

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Clauses (1) through (5) provide specific reasons for granting relief, while clause (6)

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requires a showing that the grounds justifying relief are extraordinary; mere

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dissatisfaction with the court’s order or belief that the court is wrong in its decision are

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not adequate grounds for relief. See Twentieth Century-Fox Film Corp. v. Dunnahoo,

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637 F.2d 1338, 1341 (9th Cir. 1981).

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This action was dismissed without prejudice for failure to exhaust administrative

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remedies. (Doc. 60.) In his Motion, Plaintiff indicates that he recently completed the

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prison’s grievance procedure and, as a result, would like to reopen this action. (Doc. 62

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at 1-3.)

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The Court will not reopen this action.

The remedy for a dismissal without

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prejudice for failure to exhaust is filing a new action after exhaustion, not reopening the

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initial action. Indeed, reopening this action would contravene the text of the Prison

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Litigation Reform Act, 42 U.S.C. § 1997e(a), which states that “[n]o action shall be

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brought . . . until [the prisoner’s] administrative remedies . . . are exhausted.”

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Nor is there any support for such an application of Rule 60, which empowers the

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Court to reopen an action because of an error or deficiency in the judgment. None of the

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factors identified in Rule 60 are present here, and Plaintiff appears to concede that he did

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not fully exhaust his administrative remedies before this action was filed, thus failing to

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comply with the Prison Litigation Reform Act’s mandate.

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Summerhill, 449 F.3d 1047, 1050-51 (9th Cir. 2006) (holding that a “prisoner must have

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entirely exhausted administrative remedies” by the time he submits his complaint to the

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court); McKinney v. Carey, 311 F.3d 1198, 1120-21 (9th Cir. 2002). Accordingly,

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Plaintiff’s Motion must be denied.

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See, e.g., Vaden v.

IT IS THEREFORE ORDERED that Plaintiff’s “Rule 59 Motion for a New
Trial, Alt[e]r or Amend Judg[]ment, and or Reopen His Case” (Doc. 62) is denied.
DATED this 22nd day of June, 2015.

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Honorable Stephen M. McNamee
Senior United States District Judge

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