HARRIS v. BISHOP et al

Filing 91

ORDER denying 45 Motion ; denying 51 Motion ; denying 52 Motion for Reconsideration ; granting 62 Motion for Summary Judgment; granting 65 Motion for Summary Judgment; granting 66 Motion for Summary Judgment; adopting 88 Report and Recommendations. Plaintiff's Objections are overruled. Ordered by U.S. District Judge W LOUIS SANDS on 8/27/2014. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
PHILLIP BRYAN HARRIS,
Plaintiff,
v.
SANFORD BISHOP, et al.,
Defendant.

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CASE NO.: 1:13-cv-53 (WLS)

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ORDER
Before the Court is an Order and Recommendation from United States Magistrate
Judge Stephen Hyles, filed July 09, 2014, and Plaintiff’s Motion for Reconsideration, filed
January 10, 2014. (Docs. 88, 52.)
The Court first addresses Plaintiff’s Motion for Reconsideration. (Doc. 52.) Plaintiff
moves for reconsideration of the Court’s November 26, 2013 Order (Doc. 50) adopting
Magistrate Judge Thomas Q. Langstaff’s July 3, 2013 Order and Recommendation (Doc. 26).
The Court adopted Judge Langstaff’s recommendations upon finding that Plaintiff had not
filed a timely objection. The Order denied Plaintiff’s Motion for Law Books and Typewriter
(Doc. 24), dismissed Plaintiff’s Motion for Default Judgment (Doc. 20), and dismissed as
moot Plaintiff’s Motion to Dismiss (Doc. 12). (Doc. 50 at 5-6.) The Order and
Recommendation provided the Parties with fourteen (14) days to file written objections to
the recommendations therein. (Doc. 26 at 6.) Plaintiff did not file objections. (See Docket.)
Under Federal Rule of Civil Procedure 60, a court may relieve a party from an order
for, among other reasons, mistake, newly discovered evidence, or “any other reason that
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justifies relief.” Fed. R. Civ. P. 60(b). Plaintiff apparently moves for relief under Rule
60(b)(2), which provides relief for “newly discovered evidence that, with reasonable
diligence, could not have been discovered” earlier. Fed. R. Civ. P. 60(b)(2). A motion under
Rule 60(b)(2) must be made no more than a year after entry of the order. Fed. R. Civ. P.
60(c)(1). The Eleventh Circuit has held that a movant under Rule 60(b)(2) must show that:
(1) the evidence was newly discovered; (2) he exercised due diligence to discover the new
evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is
material; and (5) the evidence is such that reconsideration of the final judgment would
probably produce a new result. In re Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS
Forwarding (USA), Inc., 685 F.3d 987, 1001 (11th Cir. 2012). “Motions under Rule 60(b) are
directed to the sound discretion of the district court . . . .” Seven Elves, Inc. v. Eskenazi, 635
F.2d 396, 402 (5th Cir. 1981) (citation omitted).
Plaintiff fails to satisfy several of these elements. Most obviously, Plaintiff’s evidence
would not produce a different result. Plaintiff’s Motion for Reconsideration alleges that he
never received a copy of Judge Langstaff’s July 3, 2013 Order and Recommendation, that he
timely filed his objection according to the mailbox rule, and that his legal mail is held by
Lieutenant Montgerard in retaliation for Plaintiff’s naming him as a defendant in multiple
lawsuits. (Doc. 52 at 1-2.) In support of his Motion, Plaintiff provides copies of: grievances
made against Lieutenant Montgerard for failing to provide him legal materials, inmate
request forms, and mail records from Plaintiff’s incoming mail at the Dougherty County Jail.
(Doc. 52-1.)

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Though Plaintiff alleges that he never received a copy of Judge Langstaff’s July 3,
2013 Order and Recommendation, the Docket reflects that Plaintiff timely filed a recast
complaint, as ordered by Judge Langstaff in the same Order and Recommendation. (Docs.
26 at 3, Doc. 27.) Additionally, Plaintiff points to two Dougherty County Jail Inmate
Request Forms that he submitted. (Doc. 52 at 1.) In those Forms, Plaintiff states that he
submitted one piece of mail on October 23, 2013 that was not mailed by Lieutenant
Montgerard until November 21, 2013 and that another piece of mail, submitted on
November 20, 2013, was not mailed until November 26, 2013. (Doc. 52-1 at 32, 34.) If
either of the pieces of mail referred to in these forms is Plaintiff’s objections to Judge
Langstaff’s Report and Recommendation, the objections would have been grossly untimely,
as they were due July 17, 2013, and likely would not have been considered by the Court.
Similarly, Plaintiff cites Inmate Requests Forms dated October 23, October 27, and
December 3, 2013 that refer to mail Plaintiff was attempting to send. (Doc. 52 at 1 (citing
Docs. 52-1 at 34, 35, 39).) Again, if any of these Forms is referring to Plaintiff’s objections to
Judge Langstaff’s recommendation, the objections would have been grossly untimely.
Further, the Docket does not reflect that any objections by Plaintiff to Judge Langstaff’s
Order and Recommendation were ever filed, timely or not. (See Docket.)
The Court finds that Plaintiff did receive a copy Judge Langstaff’s Order and
Recommendation based on Plaintiff’s timely response to a portion of the Order and
Recommendation and that Plaintiff never filed objections to the Order and
Recommendation, timely or otherwise. The Court further finds that the evidence submitted

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by Plaintiff along with his Motion for Reconsideration would probably not produce a
different result upon reconsideration of the Court’s November 26, 2013 Order.
Additionally, Judge Hyles recommends denying Plaintiff’s Motions to Provide
Medical Treatment (Docs. 45, 51) and granting Defendants’ Motions for Summary Judgment
(Docs. 62, 65, 66). The Order and Recommendation provided the Parties with fourteen (14)
days to file written objections to the recommendations therein. (Doc. 88 at 16.) On August
1, 2014 Judge Hyles granted Plaintiff’s Motion for Extension of Time to File Objections,
extending the deadline to August 15, 2014. (See Docket.) Plaintiff filed his Objections on
August 25, 2014, with no explanation for the delay. As such, it was not timely filed and will
not be considered.
Upon full review and consideration upon the record, the objections set forth in
Plaintiff’s August 25, 2014 filing are OVERRULED, and the Court finds that said Report
and Recommendation (Doc. 88) should be, and hereby is, ACCEPTED, ADOPTED and
made the Order of this Court for reason of the findings made and reasons stated therein.
Accordingly, Defendants Sproul’s, Haggerty’s, Lewis’s, Derebail’s, and Grundfast’s Motions
for Summary Judgment (Docs. 62, 65, 66) are GRANTED and Plaintiff’s Motions to
Provide Medical Treatment (Docs. 45, 51) are DENIED. Further, Plaintiff’s Motion for
Reconsideration (Doc. 52) is DENIED.
SO ORDERED, this 27th day of August, 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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