Turner v. Correctional Medical Services Inc. et al

Filing 185

MEMORANDUM AND ORDER - that (1) plaintiff's motion to recuse counsel (DI 176 ) is granted; (2) plaintiff's motion for reconsideration to reopen judgment/motion for leave of court to amend (DI 177 ) is denied; (3) plaintiff's motion f or leave of court to show fraud by Kastre (DI 178 ) is denied; (4) Jeffrey K. Martin's motion to withdraw as plaintiff's attorney (DI 183 ) is granted; and (6) plaintiff's motion for the court to grant his previously filed motion for recusal of counsel (DI 184 ) is granted. (SEE ORDER FOR DETAILS). Signed by Judge Sue L. Robinson on 6/7/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RICHARD MARK TURNER,
Plaintiff,
v.
FIRST CORRECTIONAL MEDICAL
and DR. TAMMY KASTRE,

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) Civ. No. 06-095-SLR
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MEMORANDUM ORDER
At Wilmington this it'day of June, 2012, having considered the pending
motions;
IT IS HEREBY ORDERED that: (1) plaintiff's motion to recuse counsel (0.1. 176)
is granted; (2) plaintiff's motion for reconsideration to reopen judgment/motion for leave
of court to amend (0.1. 177) is denied; (3) plaintiff's motion for leave of court to show
fraud by Kastre (0.1. 178) is denied; (4) Jeffrey K. Martin's motion to withdraw as
plaintiff's attorney (0.1. 183) is granted; and (6) plaintiff's motion for the court to grant
his previously filed motion for recusal of counsel (0.1.184) is granted, for the following
reasons:

1. Background. While plaintiff was incarcerated, he filed this lawsuit on
January 26, 2006 seeking recovery for alleged constitutional violations regarding his
medical care and treatment. Plaintiff proceeded pro se when he filed the complaint, but
is currently represented by counsel. (0.1. 2, 85) By June 11, 2009, only two defendants
remained - Dr. Tammy Kastre ("Kastre") and First Correctional Medical ("FCM"). On
July 30, 2009, the court granted plaintiff's motion for default judgment as to FCM, and a

damages hearing was held on April 9, 2010. (0.1. 116, 155) On September 20, 2011,
the court entered judgment in favor of plaintiff and against FCM in the amount of
$75,000. (0.1. 175) Approximately one year earlier, on September 30,2010, summary
judgment was granted in favor of Kastre and against plaintiff. (0.1. 169, 170, 171)
2. No activity occurred in the case until March 19,2012 when plaintiff filed a
flurry of motions, including a motion to recuse counsel, a motion for reconsideration to
reopen jUdgmenUmotion for leave of court to amend, and a motion for leave of court to
show fraud by Kastre. (0.1. 176, 177, 178) In turn, plaintiffs attorney, Jeffrey K. Martin
("Martin"), moved to withdraw as plaintiffs attorney and plaintiff filed a motion for the
court to grant his previously filed motion for recusal of counsel. (0.1. 183, 184)
3. Counsel. Plaintiff is not satisfied with Martin's legal representation and
Martin has moved to withdraw as plaintiffs counsel. (0.1. 176, 183, 184) Plaintiff and
Martin seemingly agree that their attorney/client relationship is irretrievably broken.
Therefore, the court will grant their motions and will allow Martin to withdraw his
representation of plaintiff. (0.1. 176, 183, 184)
4. Motion for Reconsideration to Reopen Judgment and to Amend. Plaintiff
moves for reconsideration to reopen the September 20, 2011 judgment entered against
FCM pursuant to Fed. R. Civ. P. 60 "in the interests of justice being served," to reinstate
Kastre as a defendant, and to add new defendants. (0.1. 177, 178) Rule 60(b)
provides that a party may file a motion for relief from a final judgment for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence by which due diligence could not have been

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discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation
or other misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged, or a prior judgment
upon which it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Fed. R. Civ. P. 60(b). A motion filed pursuant to Rule 60(b) is addressed to the sound
discretion of the trial court guided by accepted legal principles applied in light of all
relevant circumstances. Pierce Assoc. Inc., v. Nemours Found., 865 F.2d 530, 548 (3d
Cir. 1988). A motion under Rule 60(b) must be made within a reasonable time - and for
reasons (1), (2), and (3) not more than a year after the entry of the judgment or order or
the date of the proceeding. Fed. R. Civ. P. 60(c).
5. Plaintiff contends that when he and Martin appeared for the April 9, 2010
damages hearing, Martin was "totally unprepared" and failed to provide evidence
adequate for an award of proper damages to which he was entitled. Plaintiff intended
to call his infectious disease specialist, Dr. Ramesh Vemulapalli ("Dr. Vemulapalli"), but,
on the day in question, Dr. Vemulapalli was taken ill and could not attend the hearing.
Plaintiff was given two weeks to produce evidence to support his damage claim.
Plaintiff explains that Martin refused to pay for the expense of an expert witness and,
instead, used an office paralegal to file a sworn affidavit based upon information
received from an employee of the University of Pennsylvania liver transplant unit. 1

1The affidavit was not presented at the damages hearing, and was later filed on
May 4,2010. (0.1. 160, Collins aff.)

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The court adopted the recommendation of the magistrate judge and awarded plaintiff
$75,000. 2 (0.1. 174)
6. Plaintiff contends "there has been a huge 'miscarriage of justice' committed
against him'" and, regardless of responsibility, the court should have promptly
addressed the matter. Plaintiff seeks leave to reopen the case and amend damages,
requests the court to consider the Collins affidavit as timely, and seeks an increase in
the damages award taking into consideration the cost of a liver transplant and
medications. He also moves to reinstate Kastre as a defendant and add as defendants
FCM's and Kastre's insurer. In addition, plaintiff seeks leave of court, pursuant to Fed.
R. Civ. P. 60(b)(3) to show that Kastre defrauded the court regarding her involvement in
his care or the lack thereof.
7. Discussion. Plaintiff relies upon Rule 60(b)(3) - "fraud" and, presumably,
Rule 60(b)(6)" - "any other reason justifying relief." With regard to relief pursuant to
Rule 60(b)(3) and the alleged fraud by Kastre, the motion is untimely inasmuch as it
was not filed within one year of entry of the judgment. The judgment in favor of Kastre
and against plaintiff was entered on September 30, 2010 (D. I. 171), yet plaintiff did not
file his Rule 60(b) motions for relief until March 19, 2012, well past the one year period.

2Plaintiff mistakenly indicates that Martin filed a motion for an extension of time
to file objections to the report and recommendation and that the court never ruled on
the motion. The motion he refers to, however, was for an extension of time to respond
to Kastre's motion for summary judgment, and the court docket reflects that plaintiffs
response was filed and considered by the court. (See D. I. 157, 159, 168) The docket
further reflects that, with regard to damages, Martin moved to reopen the case to allow
plaintiff to fully and properly document the costs of his continuing case and the costs to
obtain a liver transplant. (D.1. 172) The court granted the motion to reopen, but
declined to modify the judgment. (See D.1. 174)

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Therefore, the motions for relief pursuant to Rule 60(b)(3) will be denied.
8.

Rule 60(b)(6) "is a catch-all provision that allows relief for any reason

justifying relief from the operation of the judgment." United States v. Witco Corp., 76 F.
Supp. 2d 519, 527 (D. Del. 1999). It is within the sound discretion of the trial court to
grant or deny relief under this section. Lasky v. Continental Products Corp., 804 F.2d
250,256 (3d Cir. 1986). The Third Circuit "has consistently held that the Rule 60(b)(6)
ground for relief from judgment provides for extraordinary relief and may only be
invoked upon a showing of exceptional circumstances." Coltec Indus., Inc. v. Hobgood,
280 F.3d 262, 273 (3d Cir. 2002) (internal citations and quotations omitted); see also
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) ("[O]ur cases have required a movant
seeking relief under Rule 60(b)(6) to show 'extraordinary circumstances' justifying the
reopening of a final judgment."). Finally, Rule 60(b)(6) generally requires the movant to
make "a more compelling showing of inequity or hardship" than would normally be
required to reopen a case under anyone of the first five subsections of Rule 60(b).
Project Mgmt. Inst., Inc. v. Ireland, 144 F. App'x 935 n.1 (3d Cir. 2005) (not published).
9. It is apparent that plaintiff is unhappy with his legal representation. While
gross neglect and abandonment of a client by an attorney creates an exception to the
rule that a client is bound by the acts of an attorney and constitutes extraordinary
circumstances permitting relief from a judgment under Rule 60(b)(6», Boughner v.
Secretary of Health, Educ. and Welfare, 572 F.2d 976, 978 (3d Cir. 1978), in viewing
Martin's actions during the pendency of the case, it cannot be said that he did either.
See also Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (Because the client is

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presumed to have voluntarily chosen the lawyer as his representative and agent, he
ordinarily cannot later avoid accountability for negligent acts or omissions of his
counsel.); Community Dental Services v. Tani, 282 F.3d 1164, 1169 (9 th Gir. 2002)
(Where the client has demonstrated gross negligence on the part of his counsel, a
default judgment against the client may be set aside pursuant to Rule 60(b)(6).); United
States v. Cirami, 563 F.2d 26 (2d Gir. 1977) (an attorney's misconduct only rises to the
level contemplated by Rule 60(b )(6) in cases of "constructive disappearance" or a
similar inability to provide adequate representation.).
10. Here, the court considered the evidence presented during the April 9, 2010
hearing, and adopted the recommendation of the magistrate judge. Thereafter, plaintiff
moved to reopen the case to submit additional evidence on the issue of damages, the
court granted the motion, but declined to modify the judgment based upon untimely,
hearsay evidence. In considering the actions of Martin, the court cannot conclude that
his performance, or his alleged deficient performance, constitutes "extraordinary
circumstances" justifying Rule 60(b)(6) relief. Therefore, the court will deny the motion.
11. Reconsideration. Plaintiff also seeks reconsideration of the court's
September 20, 2011 judgment awarding damages. The standard for obtaining relief
under Rule 59(e) is also di'fficult for plaintiff to meet. The purpose of a motion for
reconsideration is to "correct manifest errors of law or fact or to present newly
discovered evidence." Max's Seafood Cafe ex rei. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Gir. 1999). "A proper Rule 59(e) motion ... must rely on one of three
grounds: (1) an intervening change in controlling law; (2) the availability of new

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evidence; or (3) the need to correct a clear error of law or fact or to prevent manifest
injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing North River Ins.
Co. v. C/GNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
12. A litigant has twenty-eight days from the entry of the order being challenged
in which to file a motion for reconsideration. See Fed. R. Civ. P. 59(e); Thomas v.
Chase Bank and Affiliates, 402 F. App'x 677,678 (3d Cir. 2010) (not published). The
court issued its judgment awarding damages on September 20, 2011. Plaintiff did not
file his motion for reconsideration until March 19, 2012, some six months later and,
therefore, the motion for reconsideration is untimely. In addition, after considering
plaintiffs arguments, the court finds that he has not demonstrated any of the grounds
necessary to warrant reconsideration. Therefore, the court will deny the motion for
reconsideration.

UNITED STAT S DISTRICT JUDGE

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