Hodson v. Fisher et al

Filing 69

ORDER denying 66 Motion for Order, by Magistrate Judge Michael E. Hegarty on 9/21/2017. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00446-MEH
TRAVIS HODSON,
Plaintiff,
v.
NANCY KROLL,
MATTHEW ELBE,
BRANDON WILLIAMS,
ROBYN JUBA,
STEVE REAMS,
UNKNOWN DEPUTY (A), and
UNKNOWN DEPUTIES,
Defendants.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
On July 21, 2017, this Court issued an order dismissing this civil rights action without
prejudice for Plaintiff’s failure to prosecute his claims. ECF No. 62. Ten days later, Plaintiff filed
a “Motion [for] Relief [from] Judgment.” Plaintiff fails to demonstrate sufficient cause justifying
relief; accordingly, the Court will deny the motion.
The facts and procedural history of this case are set forth in this Court’s July 21, 2017 order
and, thus, need not be repeated here. See ECF No. 62. The Court dismissed this case after the
Plaintiff failed to comply with Court orders and to respond to the Court’s order to show cause. See
id. Here, Plaintiff argues the Court should “overturn the dismissal due to excusable neglect” in that
Plaintiff was “on a writ to the Colorado Mental Health Institute at Pueblo.” Mot., ECF No. 66.
Plaintiff claims he “didn’t notify the court, because the last time [he] did on May 11, 2016, it was

at risk for dismissal as moot.” Id. He also states, “The court was already advised of my condition,
and I didn’t think it was necessary because I was asked if I was getting my mail, so I didn’t notify
the court of an address change.” Id.
In this case, the Court must construe the Plaintiff’s motion for relief liberally because
Plaintiff is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A litigant subject to an adverse judgment, and who seeks reconsideration by the district court
of that adverse judgment, may “file either a motion to alter or amend the judgment pursuant to Fed.
R. Civ. P. 59(e) or a motion seeking relief from the judgment pursuant to Fed. R. Civ. P. 60(b).”
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Although courts typically
differentiate a Rule 59 motion from a Rule 60 motion by the number of days after a judgment when
the motion is filed (see id.), the Plaintiff specifies here that he seeks “relief from judgment” based
on “excusable neglect”; thus, the Court will adjudicate the motion pursuant to Rule 60(b).
Rule 60(b) provides:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(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
2

(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that
Rule 60(b) “allows a party to seek relief from a final judgment, and request reopening of his case,
under a limited set of circumstances.” Id. at 528.
The rule does not permit a party to reargue issues by rehashing facts and arguments already
addressed or available, yet neglected, in the original proceeding. See Servants of Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991). Courts rarely grant Rule 60(b) motions, deferring instead to the need for finality and the
appeals process. See Davis v. Kan. Dep’t of Corrs., 507 F.3d 1246, 1248 (10th Cir. 2007) (“Parties
seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a
substitute for an appeal.”) (quoting Cummings v. Gen. Motors Corp., 365 F.3d 944, 954 (10th Cir.
2004)).
Here, the Plaintiff asks to “overturn the dismissal due to excusable neglect” which is
governed by Rule 60(b)(1). The burden of proving excusable neglect rests with the party moving
to have the judgment set aside. Handy v. City of Sheridan, No. 12-cv-01015-WYD, 2015 WL
428380, at *2 (D. Colo. Jan. 30, 2015) (citing Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146
(10th Cir. 1990)). “Carelessness by a litigant or his counsel does not afford a basis for relief under
Rule 60(b)(1).” Id. (quoting Pelican Prod. Corp., 893 F.2d at 1146). Further, a party’s pro se status
does not afford a basis for relief under Rule 60(b)(1). Id. (citing Andrews v. Colo., No.
06–cv–01738-WDM, 2009 WL 3271177, at *2 (D. Colo. Oct. 9, 2009)). Likewise, “[i]ncarceration,
by itself, does not excuse a litigant from responding to a lawsuit.” Associated Int’l Ins. Co. v.
Crawford, 182 F.R.D. 623, 626 (D. Colo. 1998).

3

In this District, “[n]otice of change of name, mailing address, or telephone number of an
unrepresented prisoner or party shall be filed not later than five days after the change.” D.C. Colo.
LCivR 5.1(c).
Here, the Plaintiff claims he was “on a writ to the Colorado Mental Health Institute at Pueblo
but was still in the Sheriff’s custody” and he “didn’t notify the court, because the last time [he] did
on May 11, 2016 it was at risk for dismissal as moot.” Mot. 1. Plaintiff refers to an order issued by
the Honorable Gordon P. Gallagher on May 13, 2016 during initial review in which Judge Gallagher
ordered that the Plaintiff file a Second Amended Complaint to cure certain insufficiencies in the
previous pleading. At the conclusion of the order, Judge Gallagher noted
that Plaintiff recently filed a notice of change of address indicating he has been
transferred from the Colorado Mental Health Institute in Pueblo, Colorado to the
Weld County Jail. (ECF No. 7). In the Second Amended Prisoner Complaint,
Plaintiff must advise the Court whether his claims or any part of his claims are
mooted by his recent transfer.
Order, ECF No. 8. The Court finds the Plaintiff’s decision not to notify the Court of his recent
change of address based on a belief that Judge Gallagher’s order constituted a “risk of dismissal”
of his claims at this stage of the litigation is not justified. In his original Complaint and First
Amended Complaint (filed before Judge Gallagher’s order), Plaintiff’s allegations, construed
liberally, show that he was challenging a transfer from Weld County Detention Center to the
Colorado Mental Health Institute on April 28, 2014. See ECF Nos. 1 at 6, 10; 6 at 5, 8. Thus, it was
reasonable for Judge Gallagher to assume that a transfer from the Institute might render Plaintiff’s
claim, or a portion of his claim, moot. As such, Judge Gallagher simply directed the Plaintiff to
consider the matter and amend his pleading accordingly.
The Court concludes Plaintiff does not demonstrate excusable neglect in his failure to

4

prosecute this action based on his recent transfer to the Colorado Mental Health Institute. Plaintiff
does not argue that he cannot send or receive mail at the facility, or cannot otherwise prepare
necessary documents for litigation of the case. In fact, the record demonstrates that Plaintiff resided
at the Institute early in this litigation—from (at least) February 22, 2016 to May 11, 2016—and he
was able to prepare and file his pleadings and timely respond to court orders during that period.
Moreover, the record indicates no attempt by the Plaintiff to discern the status of his case after he
was recently transferred to the Institute. Although the Plaintiff is proceeding in this case without
an attorney, he bears the responsibility of prosecuting the case with due diligence. See Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir.1992) (pro se status does not excuse the obligation of any
litigant to comply with the same rules of procedure that govern other litigants).
As for Plaintiff’s statement that “[t]he court was already advised of my condition, and I
didn’t think it was necessary because I was asked if I was getting my mail, so I didn’t notify the
court of an address change,” the Court finds such statement vague and confusing. Although true that
the Court was informed of the state court’s finding that Plaintiff was “incompetent” to proceed in
his criminal case, such information, by itself, does not mean that Plaintiff was unable to participate
in this case pursuant to the Court’s orders and the applicable federal and local rules. In fact, while
the Court attempted to secure volunteer counsel to represent the Plaintiff in this case, Plaintiff
proceeded pro se and participated in this case for more than a year, including after the February 28,
2017 competency finding. See ECF Nos. 40, 44, 45, 48, 50, 52, 54.
Because the Plaintiff fails to demonstrate a reason that justifies relief from this Court’s order
dismissing the action without prejudice, the Court will deny Plaintiff’s Motion [for] Relief [from]
Judgment [filed July 31, 2017; ECF No. 66].

5

Dated this 21st day of September, 2017, in Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

6