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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1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 12 13 Sharif Devon McPhatter, 14 Plaintiff, 15 vs. 16 Charles L. Ryan, et al., 17 Defendants. ) ) ) ) ) ) ) ) ) ) CV-11-8147-PCT-RCB(JFM) O R D E R 18 19 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. 28 . . . 1 2 Background On September 20, 2011, plaintiff McPhatter, who was then 3 confined in the Arizona State Prison, Cerbat Unit, in 4 Kingman, Arizona, filed a pro se civil rights complaint 5 pursuant to 42 U.S.C. § 1983. 6 dismissed that complaint for failure to state a claim, 7 allowed plaintiff to amend his complaint. 8 plaintiff was released and he timely filed a FAC (Doc. 6). 9 Co. (Doc. 1). The court but Thereafter, The FAC asserts a claim for failure to train as against 10 the Arizona Department of Corrections (“ADC”) and ADC 11 Director Charles L. Ryan, and a second claim alleging various 12 constitutional violations against all defendants, i.e., the 13 State of Arizona; Mr. Ryan and his wife, Jane Doe Ryan; 14 Deputy Warden Pollard; and various Doe Defendants. 15 Plaintiff’s FAC alleges the following facts: On May 31, 16 2010, he was one of 25 African-American inmates in the North 17 Yard of the Cerbat Unit outside of Dorm 1. Plaintiff and the 18 other African-American inmates were attacked by approximately 19 100 Caucasian inmates using fists, stones, sticks, and other 20 weapons. After the attack began, an unspecified number of ADC 21 officers in full riot gear appeared. Despite the ongoing 22 attack, these officers did not attempt to intervene until 23 much later. 24 The FAC further alleges: Subsequently, plaintiff was 25 informed by prison officers that Deputy Warden Pollard had 26 ordered the officers to stand down and not to intervene. 27 Plaintiff also was told that to avoid putting themselves at 28 risk, the officers were ordered not to intervene. Plaintiff -2- 1 was severely beaten resulting in head and back injuries, and 2 emotional harm, including post-traumatic stress, for which he 3 sought psychiatric treatment. 4 of the ADC’s incident report was denied. Plaintiff contends 5 that based upon his race, 6 promptly to stop the attack. 7 Plaintiff’s request for a copy defendants failed to intervene After screening the FAC, on February 21, 2012, this court 8 dismissed without prejudice the claims against the State of 9 Arizona, Ryan, Jane Doe Ryan and the Doe Defendants. Ord. 10 (Doc. 8) at 7:9-10, ¶ (1). 11 sufficiently state[d] a claim for failure to protect and 12 violation of equal protection against [Deputy Warden] 13 Pollard[,]” the court required Pollard to answer those claims. 14 Id. at 6:11-13. 15 upon the following allegations: 16 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. 17 18 19 20 21 22 Id. at 6:7-11. 23 plaintiff to “complete and return the service packet to the 24 Clerk of Court within 21 days of the date of filing of this 25 Order.” 26 Among other things, that order required Id. at 7:16-17, ¶ (4) (footnote omitted). On March 19, 2012, because the plaintiff did not comply 27 with that order by completing and returning defendant 28 Pollard’s service packet, United States Magistrate Judge James -3- 1 F. Metcalf ordered “that within fourteen days of the filing of 2 this Order, Plaintiff shall either: (1) return completed 3 service packets as previously ordered; or (2) show cause why 4 this case should not be dismissed for failure to prosecute.” 5 Ord. (Doc. 9) at 1:15-17. 6 on April 11, 2012, this court ordered, inter alia, dismissal 7 of the complaint and action for failure to prosecute pursuant 8 to Fed.R.Civ.P. 41(b). 9 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 10 favor and against plaintiff (Doc. 13). 11 later, on August 16, 2012, plaintiff sought to “reopen this 12 case[.]” 13 injustice” as a result of the dismissal and entry of judgment 14 against him for failure to prosecute. Mot. (Doc. 14) at 1:15. More than four months Plaintiff claims “great Id. at 1:20. 15 Defendant Ryan’s response readily can be construed as 16 arguing, in the first instance, that plaintiff’s motion is not 17 timely. 18 plaintiff McPhatter is not entitled to relief from judgment 19 under Rule 60(b)(1) because he has not shown excusable neglect 20 within the meaning of that Rule. Even if timely, the defendant further argues that 21 22 23 Discussion I. Nature of Motion Plaintiff does not specify the Rule under which he is 24 seeking to have this court “reopen” and “reconsider” this 25 case. 26 defendant Ryan construes it as one for relief from final 27 judgment pursuant to Fed.R.Civ.P. 60(b)(1). 28 this court. See Mot. (Doc. 14) at 1:15; and 1:6. Nevertheless, So, too, will Despite its nomenclature, this court will treat -4- 1 plaintiff’s motion as a Rule 60(b) motion because it was not 2 filed within 28 days of entry of judgment, as Rule 59(e), 3 permitting altering or amending of judgments, requires. See 4 Harvest v. Castro, 531 F.3d 737, 745 (9th Cir. 2008) (treating 5 “Application to Amend Order Nunc Pro Tunc” as a Rule 60(b) 6 motion) (citing, inter alia, Am. Ironworks & Erectors, Inc. v. 7 N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (“a 8 motion for reconsideration . . . is treated as a Rule 60(b) 9 motion” if it is filed more than ten days after entry of 10 11 judgment)). For nearly identical reasons, the court also will not 12 treat plaintiff’s motion as one for reconsideration under 13 LRCiv 7.2(g). 14 judgments, plaintiff’s motion was not timely thereunder 15 because that Local Rule requires that the same be filed “no 16 later than . . . 14 . . . days after the date of the filing of 17 the Order that is the subject of the motion.” 18 7.2(g)(2). 19 11, 2012. 20 2012, also would not have been timely under that Local Rule. 21 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 22 and just terms, the court may relieve a party . . . from a 23 final judgment, . . . for . . . mistake, inadvertence, 24 surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). 25 Plaintiff’s stated basis for this motion is “Due to failure to 26 supply summons [he] thought was attached to the [FAC] that was 27 prepared for [him].” 28 that “[a]fter realizing [the summons] wasn’t present, the Mot. (Doc. 14) at 17-18. -5- Plaintiff adds 1 court [had] already dismissed the case.” 2 Defendant Ryan strongly implies that that failure was due to 3 plaintiff’s “ignorance or carelessness[,]” which are not among 4 the listed bases for relief under Rule 60(b)(1). 5 15) at 1:26-2:1 (citations omitted). 6 Id. at 1:17-19. Resp. (Doc. Regardless, the parties are misconceiving the basis for 7 dismissal. This dismissal for failure to prosecute under Rule 8 41(b) was predicated upon plaintiff’s failure to timely 9 complete and return to the Clerk’s Office Deputy Warden 10 Pollard’s service packet. 11 plaintiff suggests, that this action was dismissed because he 12 returned an incomplete service packet, i.e., the FAC without 13 the summons. 14 purportedly missing summons. 15 plaintiff is entitled to have the judgment vacated, despite 16 the fact that he did not timely complete and return Pollard’s 17 service packet in accordance with this court’s orders, and 18 even though he filed this motion more than four months after 19 entry of the judgment. 20 II. 21 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. -6- 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. 17 A. Interest in Finality 18 A Rule 60(b)(1) “motion guides the balance between ‘the 19 overriding judicial goal of deciding cases correctly, on the 20 basis of their legal and factual merits, with the interest of 21 both litigants and the courts in the finality of judgments.’” 22 In re Williams, 287 B.R. 787, 793 (9th Cir. BAP 2002) (quoting 23 TCI Group Life Ins. v. Knoebber, 244 F.3d 691, 695 (9th Cir. 24 2001)). 25 ‘there is a compelling interest in the finality of judgments 26 which should not lightly be disregarded.’” Id. (quoting Pena 27 v. Sequros La Comercial, 770 F.2d 811, 814 (9th Cir. 1985)). 28 Accordingly, the Ninth Circuit has determined that where “the Although Rule 60(b) motions “are liberally construed, -7- 1 time for filing an appeal to the underlying judgment has 2 expired, the interest in the finality of judgments is to be 3 given great weight in determining whether a FRCP 60(b)(1) 4 motion is filed within a ‘reasonable time.’” 5 Ashford, 657 F.2d at 1055) (emphasis added). 6 Id. (citing In the present case, the order of dismissal and judgment 7 were entered on April 11, 2012. 8 docket sheet reflects, the order together with the judgment 9 were mailed to plaintiff on that same date. Docs. 12 and 13. As the Presumably he 10 received both, because he is not claiming lack of notice of 11 the order or judgment as a basis for this motion. And further, 12 those documents were not returned as undeliverable, as 13 happened earlier in this case when a court order was returned 14 as undeliverable because plaintiff had been released from 15 custody and had not, at that time, given notice of his change 16 of address. 17 See Doc. 5. Federal Rule of Appellate Procedure 4(a)(1)(A) provides 18 that in a case such as this, the notice of appeal “must be 19 filed within 30 days after entry of the judgment or order 20 appealed from.” 21 McPhatter did not file a notice of appeal, timely or 22 otherwise, in accordance with that Rule. 23 motion to alter or amend the judgment pursuant to Rule 59, 24 which would have extended his time for filing a notice of 25 appeal. 26 waited more than four months (127 days to be precise) after 27 entry of the judgment, and more than three months after the 28 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). -8- Plaintiff Nor did he file a Instead, he 1 vacate. 2 motion, the court, as it must, gives “great weight” to the 3 interest in finality of this judgment. 4 at 793 (same, where creditor did not timely file a notice of 5 appeal or “immediately move for reconsideration and 6 effectively stay[] the appeal period[,]” but instead waited 85 7 days before filing a Rule 60(b)(1) motion); see also Coronado 8 v. Chavez, 2010 WL 892192, at * 2 (D.Ariz. March 10, 2010) 9 (citing Ashford, 657 F.2d at 1055) (“[S]ince the plaintiff Accordingly, in assessing the timeliness of this See Williams, 287 B.R. 10 filed his pending motion long [almost ten months after entry 11 of the judgment] after the time for appealing the judgment had 12 passed, the Court must give ‘great weight’ to the interest in 13 finality.”)1 14 Rule 60(b) motion “was not timely because it was filed after 15 the expiration of the time to appeal[,]” where the plaintiff 16 filed his motion within a much shorter time frame than 17 plaintiff McPhatter. 18 688 F.2d 1291, 1293 n. 2 (9th Cir. 1982) (plaintiff filed his 19 Rule 60(b) motion only “48 days after entry of the order and 20 18 days after the expiration of the time for appeal of that 21 order[]”). Indeed, the Ninth Circuit has “agree[d]” that a See Plotkin v. Pacific Tel. & Tel. Co., 22 23 24 25 26 27 28 1 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). -9- 1 The interest in finality is bolstered in this case because 2 the Rule 41(b) dismissal order did not state that it was 3 without prejudice. 4 adjudication on the merits.”2 5 is distinguishable from a party seeking to set aside a default 6 judgment, where the Ninth Circuit has emphasized that “where 7 there has been no merits decision, appropriate exercise of 8 district court discretion under Rule 60(b) requires that the 9 finality interest should give way fairly readily, to further 10 the competing interest in reaching the merits of a dispute[]” 11 does not come into play in this case. 12 at 696 (emphasis in original). 13 court has little difficulty finding that the first Ashford 14 factor –- interest in finality of judgments -– weighs against 15 finding that this motion was brought within a “reasonable 16 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 17 B. 18 As in Ashford, plaintiff McPhatter offers no reason 19 whatsoever for his “failure to timely challenge the [order of 20 dismissal and judgment thereon] by direct appeal or 60(b) 21 motion[,]” and the court declines to speculate. 22 657 F.2d at 1055. 23 also militates against a finding that this motion was filed 24 within a “reasonable time.” 25 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 26 27 28 2 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). - 10 - 1 opinion on other grounds, 334 Fed.Appx. 848 (9th Cir. 2009) 2 (denying plaintiff’s Rule 60(b)(1) and (6) motion as untimely 3 where he waited over four months to file it, and “provided no 4 reasonable justification for []his continued delay[]”). 5 C. The Practical Ability of the Litigant to Learn Earlier of the Grounds Relied Upon 6 7 In his motion, plaintiff states, as earlier mentioned, 8 that “[a]fter [he] realiz[ed] [the summons] wasn’t present, 9 the court had already dismissed the case.” Mot. (Doc. 14) at 10 1:18-19. This is not responsive to when plaintiff learned that 11 the court had dismissed this action and entered judgment 12 against him for failure to prosecute, however. 13 plaintiff is not claiming that anything “impeded [his] 14 awareness of the court’s ruling and all of the relevant facts 15 and law.” 16 factor points to a finding that plaintiff McPhatter did not 17 file his motion within a “reasonable time[,]” as Rule 60(c)(1) 18 requires. 19 20 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. 21 § 1983, “federal courts apply the statute of limitations 22 governing personal injury claims in the forum state.” 23 Granville, 2012 WL 6674420, at *6 (D.Ariz. Dec. 20, 2012) 24 (citing Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 25 85 L.Ed.2d 254 (1985); TwoRivers v. Lewis, 174 F.3d 987, 991 26 (9th Cir. 1999)). 27 personal injury claims is two years.” Cuen v. “In Arizona, the limitations period for 28 - 11 - Id. (citing, inter 1 alia, Ariz.Rev.Stat. § 12–542 (providing that actions for 2 personal injury must be commenced within two years after the 3 cause of action accrues). Given that the incident at issue 4 took place on May 31, 2010 5 defendant Ryan argues that that two year statute of 6 limitations has “expired” as to plaintiff’s claims. 7 (Doc. 15) at 3:5 (citing TwoRivers, 174 F.3d at 991). 8 Additionally, defendant Ryan asserts that during that time 9 frame, “[t]here is no indication . . . that [plaintiff] has 10 sought to serve Defendant Pollard or that [he] ever received 11 notice of this action.” 12 defendant’s response does not explicitly mention prejudice, 13 that is the obvious implication of this statute of limitations 14 argument. 15 -– “well over two years ago” -- Id. at 3:7-8. Resp. Even though Under the particular circumstances of this case, the court 16 agrees that prejudice would arise if the court were to vacate 17 the judgment. 18 as one purpose allowing a defendant relief from being forced to 19 litigate stale claims.” 20 *5 (D.Or. Nov. 3, 2011), adopted by Sayago v. Jiminez, 2011 WL 21 5914266 (D.Or. Nov. 23, 2011). 22 dismissing a claim that is past the statute of limitations for 23 failure to prosecute the claim takes this protection from the 24 defendant. This can be prejudice to the defendant.” 25 accord Murray v. Walgreen Co., 2011 WL 4089588, at *2 (D.N.J. 26 Aug. 24, 2011) (“[i]n light of the Supreme Court’s directive 27 [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 28 - 12 - Id.; 1 618, 630, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) (internal 2 quotations and citations omitted), superseded by statute on 3 other grounds in 42 U.S.C. § 2000e–5(e)] to heed the policy 4 determinations implicit in statutes of limitations,” finding 5 “as a result, . . . that Defendant would suffer prejudice by 6 being forced to defend stale claims”) , aff’d without pub’d 7 opinion, 470 Fed. Appx. 97 (3rd Cir. 2012). 8 9 Plaintiff McPhatter has never claimed that he was unaware of any of the court’s orders, directing him to timely 10 complete and return defendant Pollard’s service packet. 11 Similarly, he has never claimed that he was unaware of the 12 order of dismissal and entry of judgment against him. 13 Indeed, he must have been aware of it at some point, as he 14 filed this motion to vacate. 15 ability to vindicate [his] claims is thus due to [his] 16 failure to proceed in a timely manner[,]” and his failure to 17 comply with this court’s orders. 18 at *5. 19 as here, the party seeking relief has not explained [its] 20 failure to prosecute.” Id. (citing Laurino v. Syringa Gen. 21 Hosp., 279 F.3d 750, 753 (9th Cir. 2002)).3 22 has not offered an explanation regarding [his] delay in 23 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 24 25 26 27 28 3 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. - 13 - 1 explanation for his delay in filing the present motion. 2 id. 3 prejudice factor also weighs in favor of a finding that 4 plaintiff’s motion is untimely. 5 See Based upon the foregoing, the court finds that the In sum, based upon the totality of the circumstances, as 6 gleaned from plaintiff’s motion, defendant Ryan’s response, 7 and the entire record, and after applying the Ashford 8 factors, the court finds that plaintiff’s motion to vacate 9 was not made within a “reasonable time,” as Rule 60(c)(1) 10 requires, and so denies it.4 11 12 13 14 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. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 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). - 14 - 1 Copies to counsel of record and plaintiff pro se 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 -

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