Carrier v. Lundstedt et al

Filing 59

ORDER denying 58 Motion for a Relief From Judgement [sic] in Accordance with Fed.R.Civ.P.60 by Judge Philip A. Brimmer on 09/07/2017. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02933-PAB-CBS
JOSHUA D. CARRIER,
Plaintiff,
v.
MICHELLE LUNDSTEDT,
AMY FITCH, and
ANDY BRYANT,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Motion for a Relief from Judgement
[sic] in Accordance with Fed. R. Civ. P. 60 [Docket No. 58]. In light of plaintiff’s pro se
status, the Court construes his filings liberally. See Haines v. Kerner, 404 U.S. 519,
520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
The Court accepted the recommendation of the magistrate judge and dismissed
all of plaintiff’s claims on March 4, 2015. Docket No. 53. Plaintiff claims that he did not
receive notice of that judgment until the Clerk of Court mailed plaintiff an additional
copy of the final judgment in December 2016. Docket No. 58 at 1; see also Docket No.
57. On February 6, 2017, plaintiff filed his motion requesting relief from judgment
pursuant to Fed. R. Civ. P. 60.
Relief after judgment is discretionary and only appropriate for “(1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with

reasonable diligence, could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Because
such relief is “extraordinary and may only be granted in exceptional circumstances,”
The Servants of the Paraclete v. John Does, 204 F.3d 1005, 1009 (10th Cir. 2000),
parties seeking relief under Rule 60(b) have a high hurdle to overcome; a Rule 60(b)
motion should not be treated as a substitute f or an appeal. Zurich N. Am. v. Matrix
Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005). Rule 60(b)(6) has been described as
a “grand reservoir of equitable power to do justice in a particular case.” Pierce v. Cook
& Co., Inc., 518 F.2d 720, 722 (10th Cir. 1975) (en banc) (citation om itted). “Relief
under Rule 60(b)(6) is appropriate when circumstances are so ‘unusual or compelling’
that extraordinary relief is warranted, or when it ‘offends justice’ to deny such relief.”
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996) (quoting Pelican
Prod. Corp. v. Marino, 893 F.2d 1143, 1147 (10th Cir. 1990)). Courts have granted
relief under Rule 60(b)(6) “when, after entry of judgment, events not contemplated by
the moving party render enforcement of the judgment inequitable,” where a party is
indigent, or when it offends justice to deny such relief. Id. at 579; Yapp v. Excel Corp.,
186 F.3d 1222, 1231-32 (10th Cir. 1999).
Plaintiff argues that he should be granted relief from judgment because the Court

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improperly placed the burden of proof on plaintiff for certain issues and did not take his
allegations as true. Docket No. 58 at 3. In particular, plaintif f notes that the Court
stated that he provided “no persuasive basis for” concluding that defendants Fitch and
Bryant, who were prosecutors, were not entitled for prosecutorial immunity. See Docket
No. 53 at 5. Plaintiff is mistaken. The magistrate judge assumed that plaintiff’s
allegations that defendants Fitch and Bryant had access to recordings of phone calls
that plaintiff made to his attorney were true. Docket No. 48 at 6-7. Nonetheless, the
magistrate judge correctly determined that, even assuming plaintiff’s allegations were
true, defendants Fitch and Bryant were entitled to immunity from plaintiff’s 42 U.S.C.
§ 1983 claims against them in their individual capacities. Id.; see also Nielander v.
Board of County Comm’rs., 582 F.3d 1155, 1164 (10th Cir. 2009) (“Prosecutors are
entitled to absolute immunity for . . . their investigatory or evidence-gathering actions.”)
(citation omitted). Plaintiff’s objection to the magistrate judge’s recommendation did not
state a persuasive basis to conclude otherwise and, on de novo review, the Court
accepted the magistrate judge’s recommendation that, even if plaintiff’s allegations
were assumed to be true, plaintiff’s claims must be dismissed due to prosecutorial
immunity. Docket No. 53 at 4-5. Plaintiff has not shown that relief from judgment is
warranted in this case and the Court will deny his motion.
For the foregoing reasons, it is
ORDERED that plaintiff’s Motion for a Relief from Judgement [sic] in Accordance
with Fed. R. Civ. P. 60 [Docket No. 58] is DENIED.

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DATED September 7, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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