McPhatter v. Ryan et al

Filing 16

ORDER that Plaintiff's 14 Motion to Reconsider is DENIED. Signed by Senior Judge Robert C Broomfield on 2/4/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sharif Devon McPhatter,

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Plaintiff,

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vs.

16 Charles L. Ryan, et al.,
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Defendants.

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CV-11-8147-PCT-RCB(JFM)
O R D E R

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Pending before the court is a motion styled as one to

20 “reconsider” filed by plaintiff pro se Sharif Devon McPhatter,
21 seeking to have this court “reopen this case[.]” Mot. (Doc.
22 14) at 1:6 and 15.

More specifically, plaintiff is seeking to

23 have this court vacate the order dismissing this action for
24 failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and the
25 judgment entered thereon.

Because this motion was not timely

26 filed, as discussed herein, the court denies plaintiff’s
27 motion.
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Background
On September 20, 2011, plaintiff McPhatter, who was then

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confined in the Arizona State Prison, Cerbat Unit, in

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Kingman, Arizona, filed a pro se civil rights complaint

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pursuant to 42 U.S.C. § 1983.

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dismissed that complaint for failure to state a claim,

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allowed plaintiff to amend his complaint.

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plaintiff was released and he timely filed a FAC (Doc. 6).

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Co. (Doc. 1).

The court
but

Thereafter,

The FAC asserts a claim for failure to train as against

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the Arizona Department of Corrections (“ADC”) and ADC

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Director Charles L. Ryan, and a second claim alleging various

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constitutional violations against all defendants, i.e., the

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State of Arizona; Mr. Ryan and his wife, Jane Doe Ryan;

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Deputy Warden Pollard; and various Doe Defendants.

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Plaintiff’s FAC alleges the following facts: On May 31,

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2010, he was one of 25 African-American inmates in the North

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Yard of the Cerbat Unit outside of Dorm 1. Plaintiff and the

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other African-American inmates were attacked by approximately

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100 Caucasian inmates using fists, stones, sticks, and other

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weapons. After the attack began, an unspecified number of ADC

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officers in full riot gear appeared. Despite the ongoing

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attack, these officers did not attempt to intervene until

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much later.

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The FAC further alleges:

Subsequently, plaintiff was

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informed by prison officers that Deputy Warden Pollard had

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ordered the officers to stand down and not to intervene.

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Plaintiff also was told that to avoid putting themselves at

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risk, the officers were ordered not to intervene. Plaintiff
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was severely beaten resulting in head and back injuries, and

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emotional harm, including post-traumatic stress, for which he

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sought psychiatric treatment.

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of the ADC’s incident report was denied. Plaintiff contends

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that based upon his race,

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promptly to stop the attack.

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Plaintiff’s request for a copy

defendants failed to intervene

After screening the FAC, on February 21, 2012, this court

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dismissed without prejudice the claims against the State of

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Arizona, Ryan, Jane Doe Ryan and the Doe Defendants.

Ord.

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(Doc. 8) at 7:9-10, ¶ (1).

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sufficiently state[d] a claim for failure to protect and

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violation of equal protection against [Deputy Warden]

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Pollard[,]” the court required Pollard to answer those claims.

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Id. at 6:11-13.

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upon the following allegations:

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However, finding that “[p]laintiff

The court required Pollard to answer based

Plaintiff alleges that Defendant Pollard
prevented prison officers in riot
gear from intervening to stop attacks
by a large number of Caucasian inmates
against a much smaller number of African
American inmates during which Plaintiff
was beaten and injured. Plaintiff also
alleges that Pollard ordered officers in
riot gear not to intervene in the race
riot based on the race of the African
American inmates, including Plaintiff.

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Id. at 6:7-11.

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plaintiff to “complete and return the service packet to the

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Clerk of Court within 21 days of the date of filing of this

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Order.”

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Among other things, that order required

Id. at 7:16-17, ¶ (4) (footnote omitted).

On March 19, 2012, because the plaintiff did not comply

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with that order by completing and returning defendant

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Pollard’s service packet, United States Magistrate Judge James
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F. Metcalf ordered “that within fourteen days of the filing of

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this Order, Plaintiff shall either: (1) return completed

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service packets as previously ordered; or (2) show cause why

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this case should not be dismissed for failure to prosecute.”

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Ord. (Doc. 9) at 1:15-17.

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on April 11, 2012, this court ordered, inter alia, dismissal

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of the complaint and action for failure to prosecute pursuant

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to Fed.R.Civ.P. 41(b).

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April 11, 2012, a final judgment was entered in defendants’

When plaintiff did not so comply,

Ord. (Doc. 12) at 1:19-21.

Also on

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favor and against plaintiff (Doc. 13).

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later, on August 16, 2012, plaintiff sought to “reopen this

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case[.]”

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injustice” as a result of the dismissal and entry of judgment

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against him for failure to prosecute.

Mot. (Doc. 14) at 1:15.

More than four months

Plaintiff claims “great

Id. at 1:20.

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Defendant Ryan’s response readily can be construed as

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arguing, in the first instance, that plaintiff’s motion is not

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timely.

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plaintiff McPhatter is not entitled to relief from judgment

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under Rule 60(b)(1) because he has not shown excusable neglect

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within the meaning of that Rule.

Even if timely, the defendant further argues that

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Discussion
I.

Nature of Motion
Plaintiff does not specify the Rule under which he is

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seeking to have this court “reopen” and “reconsider” this

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case.

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defendant Ryan construes it as one for relief from final

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judgment pursuant to Fed.R.Civ.P. 60(b)(1).

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this court.

See Mot. (Doc. 14) at 1:15; and 1:6.

Nevertheless,

So, too, will

Despite its nomenclature, this court will treat
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plaintiff’s motion as a Rule 60(b) motion because it was not

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filed within 28 days of entry of judgment, as Rule 59(e),

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permitting altering or amending of judgments, requires. See

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Harvest v. Castro, 531 F.3d 737, 745 (9th Cir. 2008) (treating

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“Application to Amend Order Nunc Pro Tunc” as a Rule 60(b)

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motion) (citing, inter alia, Am. Ironworks & Erectors, Inc. v.

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N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (“a

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motion for reconsideration . . . is treated as a Rule 60(b)

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motion” if it is filed more than ten days after entry of

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judgment)).
For nearly identical reasons, the court also will not

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treat plaintiff’s motion as one for reconsideration under

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LRCiv 7.2(g).

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judgments, plaintiff’s motion was not timely thereunder

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because that Local Rule requires that the same be filed “no

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later than . . . 14 . . . days after the date of the filing of

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the Order that is the subject of the motion.”

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7.2(g)(2).

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11, 2012.

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2012, also would not have been timely under that Local Rule.

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Assuming arguendo that Rule applies to final

LRCiv

Here, the order and judgment were entered on April
Therefore, plaintiff’s motion, filed on August 16,

Rule 60(b) provides in relevant part that “[o]n motion

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and just terms, the court may relieve a party . . . from a

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final judgment, . . . for . . . mistake, inadvertence,

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surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).

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Plaintiff’s stated basis for this motion is “Due to failure to

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supply summons [he] thought was attached to the [FAC] that was

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prepared for [him].”

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that “[a]fter realizing [the summons] wasn’t present, the

Mot. (Doc. 14) at 17-18.

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Plaintiff adds

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court [had] already dismissed the case.”

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Defendant Ryan strongly implies that that failure was due to

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plaintiff’s “ignorance or carelessness[,]” which are not among

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the listed bases for relief under Rule 60(b)(1).

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15) at 1:26-2:1 (citations omitted).

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Id. at 1:17-19.

Resp. (Doc.

Regardless, the parties are misconceiving the basis for

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dismissal. This dismissal for failure to prosecute under Rule

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41(b) was predicated upon plaintiff’s failure to timely

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complete and return to the Clerk’s Office Deputy Warden

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Pollard’s service packet.

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plaintiff suggests, that this action was dismissed because he

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returned an incomplete service packet, i.e., the FAC without

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the summons.

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purportedly missing summons.

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plaintiff is entitled to have the judgment vacated, despite

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the fact that he did not timely complete and return Pollard’s

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service packet in accordance with this court’s orders, and

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even though he filed this motion more than four months after

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entry of the judgment.

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II.

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Nothing in the record shows, as

Therefore, the focus here is not on the
Instead, the issue is whether

Timeliness
Before turning to the merits, it is necessary to address

22 the timeliness of plaintiff’s motion.

A Rule 60(b)(1) motion

23 “must be made within a reasonable time,” and in any event “no
24 more than a year after entry of the judgment or order[.]”
25 Fed.R.Civ.P. 60(c)(1).

Plaintiff McPhatter filed the pending

26 motion less than one year after entry of judgment, but more
27 than four months after entry of the judgment and more than
28 three months after the filing date for a notice of appeal.
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1 Although plaintiff was within the Rule 60(c)(1)’s outside
2 limitation for filing this motion, that is not dispositive of
3 the timeliness issue.

“[A] court may deny a Rule 60(b)(1)

4 motion, even if it was filed within the one-year period, if
5 the moving party ‘was guilty of laches or unreasonable
6 delay.’”

Hidais v. Porter, 2010 WL 760561, at *1 (N.D.Cal.

7 March 4, 2010) (quoting Meadows v. Dominican Republic, 817
8 F.2d 517, 520–21 (9th Cir. 1987)).

“‘What constitutes

9 ‘reasonable time’ within the meaning of Rule 60(c)(1), depends
10 upon the facts of each case, taking into consideration the
11 interest in finality, the reason for delay, the practical
12 ability of the litigant to learn earlier of the grounds relied
13 upon, and prejudice to the other parties.’”

Lemoge v. U.S.,

14 587 F.3d 1188, 1196 (9th Cir. 2009) (quoting Ashford v.
15 Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam)).
16 The court will address the Ashford factors seriatim.
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A.

Interest in Finality

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A Rule 60(b)(1) “motion guides the balance between ‘the

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overriding judicial goal of deciding cases correctly, on the

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basis of their legal and factual merits, with the interest of

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both litigants and the courts in the finality of judgments.’”

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In re Williams, 287 B.R. 787, 793 (9th Cir. BAP 2002) (quoting

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TCI Group Life Ins. v. Knoebber, 244 F.3d 691, 695 (9th Cir.

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2001)).

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‘there is a compelling interest in the finality of judgments

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which should not lightly be disregarded.’” Id. (quoting Pena

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v. Sequros La Comercial, 770 F.2d 811, 814 (9th Cir. 1985)).

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Accordingly, the Ninth Circuit has determined that where “the

Although Rule 60(b) motions “are liberally construed,

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time for filing an appeal to the underlying judgment has

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expired, the interest in the finality of judgments is to be

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given great weight in determining whether a FRCP 60(b)(1)

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motion is filed within a ‘reasonable time.’”

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Ashford, 657 F.2d at 1055) (emphasis added).

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Id. (citing

In the present case, the order of dismissal and judgment

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were entered on April 11, 2012.

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docket sheet reflects, the order together with the judgment

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were mailed to plaintiff on that same date.

Docs. 12 and 13.

As the

Presumably he

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received both, because he is not claiming lack of notice of

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the order or judgment as a basis for this motion. And further,

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those documents were not returned as undeliverable, as

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happened earlier in this case when a court order was returned

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as undeliverable because plaintiff had been released from

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custody and had not, at that time, given notice of his change

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of address.

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See Doc. 5.

Federal Rule of Appellate Procedure 4(a)(1)(A) provides

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that in a case such as this, the notice of appeal “must be

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filed within 30 days after entry of the judgment or order

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appealed from.”

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McPhatter did not file a notice of appeal, timely or

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otherwise, in accordance with that Rule.

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motion to alter or amend the judgment pursuant to Rule 59,

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which would have extended his time for filing a notice of

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appeal.

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waited more than four months (127 days to be precise) after

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entry of the judgment, and more than three months after the

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time to appeal had expired, to file the pending motion to

Fed. R.App. P. 4(a)(1)(A).

See Fed. R.App. P.4(a)(4)(A)(iv).

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Plaintiff

Nor did he file a

Instead, he

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vacate.

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motion, the court, as it must, gives “great weight” to the

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interest in finality of this judgment.

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at 793 (same, where creditor did not timely file a notice of

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appeal or “immediately move for reconsideration and

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effectively stay[] the appeal period[,]” but instead waited 85

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days before filing a Rule 60(b)(1) motion); see also Coronado

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v. Chavez, 2010 WL 892192, at * 2 (D.Ariz. March 10, 2010)

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(citing Ashford, 657 F.2d at 1055) (“[S]ince the plaintiff

Accordingly, in assessing the timeliness of this

See Williams, 287 B.R.

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filed his pending motion long [almost ten months after entry

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of the judgment] after the time for appealing the judgment had

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passed, the Court must give ‘great weight’ to the interest in

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finality.”)1

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Rule 60(b) motion “was not timely because it was filed after

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the expiration of the time to appeal[,]” where the plaintiff

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filed his motion within a much shorter time frame than

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plaintiff McPhatter.

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688 F.2d 1291, 1293 n. 2 (9th Cir. 1982) (plaintiff filed his

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Rule 60(b) motion only “48 days after entry of the order and

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18 days after the expiration of the time for appeal of that

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order[]”).

Indeed, the Ninth Circuit has “agree[d]” that a

See Plotkin v. Pacific Tel. & Tel. Co.,

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The court stresses that it is not holding that a Rule 60(b)(1)
motion must always be filed prior to the time allowed for filing a notice
of appeal or a Rule 59 motion. “Rule 60(c)(1) clearly contemplates Rule
60(b)(1) motions may be filed ‘no more than a year after the entry of the
judgment or order or the date of the proceeding.’” Woodfin Suite Hotels,
LLC v. City of Emeryville, 2008 WL 724105, at *11 n. 20 (N.D.Cal. March 14,
2008) (quoting Fed.R.Civ.P. 60(c)(1)). “And, Ashford clearly holds the
determination of whether a Rule 60(b)(1) motion is filed within a
reasonable time, is dependent on facts and circumstances.” Id. (citing
Ashford, 657 F.2d at 1053).

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The interest in finality is bolstered in this case because

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the Rule 41(b) dismissal order did not state that it was

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without prejudice.

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adjudication on the merits.”2

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is distinguishable from a party seeking to set aside a default

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judgment, where the Ninth Circuit has emphasized that “where

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there has been no merits decision, appropriate exercise of

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district court discretion under Rule 60(b) requires that the

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finality interest should give way fairly readily, to further

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the competing interest in reaching the merits of a dispute[]”

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does not come into play in this case.

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at 696 (emphasis in original).

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court has little difficulty finding that the first Ashford

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factor –- interest in finality of judgments -– weighs against

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finding that this motion was brought within a “reasonable

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time.”

Consequently, it “operates as an
Fed.R.Civ.P. 41(b).

As such, it

See Knoebber, 244 F.3d

For both of these reasons, the

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B.

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As in Ashford, plaintiff McPhatter offers no reason

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whatsoever for his “failure to timely challenge the [order of

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dismissal and judgment thereon] by direct appeal or 60(b)

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motion[,]” and the court declines to speculate.

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657 F.2d at 1055.

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also militates against a finding that this motion was filed

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within a “reasonable time.”

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508067, at *4 (D.Hawai’i Feb. 26, 2008), aff’d without pub’d

Reason for Delay

See Ashford,

Consequently, the reason for delay factor

See Regan v. Frank, 2008 WL

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There are certain exceptions to a Rule 41(b) dismissal
“operat[ing] as an adjudication on the merits[,]” but none applies here.
See Fed.R.Civ.P.41(b).

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opinion on other grounds, 334 Fed.Appx. 848 (9th Cir. 2009)

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(denying plaintiff’s Rule 60(b)(1) and (6) motion as untimely

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where he waited over four months to file it, and “provided no

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reasonable justification for []his continued delay[]”).

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C. The Practical Ability of the Litigant to Learn
Earlier of the Grounds Relied Upon

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In his motion, plaintiff states, as earlier mentioned,

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that “[a]fter [he] realiz[ed] [the summons] wasn’t present,

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the court had already dismissed the case.”

Mot. (Doc. 14) at

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1:18-19. This is not responsive to when plaintiff learned that

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the court had dismissed this action and entered judgment

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against him for failure to prosecute, however.

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plaintiff is not claiming that anything “impeded [his]

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awareness of the court’s ruling and all of the relevant facts

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and law.”

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factor points to a finding that plaintiff McPhatter did not

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file his motion within a “reasonable time[,]” as Rule 60(c)(1)

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requires.

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D.

See Ashford, 657 F.2d at 1055.

Further,

Thus, again, this

See Fed.R.Civ.P. 60(c)(1).

Prejudice to Other Parties

In an action such as this, brought pursuant to 42 U.S.C.

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§ 1983, “federal courts apply the statute of limitations

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governing personal injury claims in the forum state.”

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Granville, 2012 WL 6674420, at *6 (D.Ariz. Dec. 20, 2012)

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(citing Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938,

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85 L.Ed.2d 254 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991

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(9th Cir. 1999)).

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personal injury claims is two years.”

Cuen v.

“In Arizona, the limitations period for

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Id. (citing, inter

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alia, Ariz.Rev.Stat. § 12–542 (providing that actions for

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personal injury must be commenced within two years after the

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cause of action accrues). Given that the incident at issue

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took place on May 31, 2010

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defendant Ryan argues that that two year statute of

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limitations has “expired” as to plaintiff’s claims.

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(Doc. 15) at 3:5 (citing TwoRivers, 174 F.3d at 991).

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Additionally, defendant Ryan asserts that during that time

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frame, “[t]here is no indication . . . that [plaintiff] has

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sought to serve Defendant Pollard or that [he] ever received

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notice of this action.”

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defendant’s response does not explicitly mention prejudice,

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that is the obvious implication of this statute of limitations

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argument.

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-– “well over two years ago” --

Id. at 3:7-8.

Resp.

Even though

Under the particular circumstances of this case, the court

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agrees that prejudice would arise if the court were to vacate

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the judgment.

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as one purpose allowing a defendant relief from being forced to

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litigate stale claims.”

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*5 (D.Or. Nov. 3, 2011), adopted by Sayago v. Jiminez, 2011 WL

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5914266 (D.Or. Nov. 23, 2011).

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dismissing a claim that is past the statute of limitations for

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failure to prosecute the claim takes this protection from the

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defendant. This can be prejudice to the defendant.”

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accord Murray v. Walgreen Co., 2011 WL 4089588, at *2 (D.N.J.

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Aug. 24, 2011) (“[i]n light of the Supreme Court’s directive

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[in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S.

That is because “[s]tatutes of limitation have

Sayago v. Jiminez, 2011 WL 5914279, at

“Setting aside a judgment

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Id.;

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618, 630, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) (internal

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quotations and citations omitted), superseded by statute on

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other grounds in 42 U.S.C. § 2000e–5(e)] to heed the policy

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determinations implicit in statutes of limitations,” finding

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“as a result, . . . that Defendant would suffer prejudice by

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being forced to defend stale claims”) , aff’d without pub’d

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opinion, 470 Fed. Appx. 97 (3rd Cir. 2012).

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Plaintiff McPhatter has never claimed that he was
unaware of any of the court’s orders, directing him to timely

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complete and return defendant Pollard’s service packet.

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Similarly, he has never claimed that he was unaware of the

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order of dismissal and entry of judgment against him.

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Indeed, he must have been aware of it at some point, as he

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filed this motion to vacate.

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ability to vindicate [his] claims is thus due to [his]

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failure to proceed in a timely manner[,]” and his failure to

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comply with this court’s orders.

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at *5.

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as here, the party seeking relief has not explained [its]

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failure to prosecute.” Id. (citing Laurino v. Syringa Gen.

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Hosp., 279 F.3d 750, 753 (9th Cir. 2002)).3

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has not offered an explanation regarding [his] delay in

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prosecution[;]” nor, as just discussed has he offered any

Thus, “[a]ny loss of [his]

See Sayago, 2011 5914279,

Therefore, “a presumption of prejudice arises where,

“Plaintiff still

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The court is fully aware that in Sayago, Laurino and Murray, the
prejudice discussion was in the context of the four factors which inform
the excusable neglect analysis, as opposed to determining the timeliness of
a Rule 60(b)(1) motion in the first place.
That distinction does not
render those cases any less instructive, however, on the issue of prejudice
herein.

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explanation for his delay in filing the present motion.

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id.

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prejudice factor also weighs in favor of a finding that

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plaintiff’s motion is untimely.

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See

Based upon the foregoing, the court finds that the

In sum, based upon the totality of the circumstances, as

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gleaned from plaintiff’s motion, defendant Ryan’s response,

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and the entire record, and after applying the Ashford

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factors, the court finds that plaintiff’s motion to vacate

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was not made within a “reasonable time,” as Rule 60(c)(1)

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requires, and so denies it.4

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Conclusion
For the above discussed reasons, the court hereby ORDERS
that Plaintiff’s “Motion to Reconsider” (Doc. 14) is DENIED.
DATED this 4th day of February, 2013.

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Having found that plaintiff’s motion is untimely, the court need
not address defendant Ryan’s motion that plaintiff failed to establish
excusable neglect under Rule 60(b)(1). Cf. Williams, 287 B.R. at 794 n. 14
(not reaching the issue of excusable neglect “[b]ecause the bankruptcy
court did not abuse its discretion” in denying creditor’s Rule 60(b)(1)
motion as untimely).

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