Burns v. Fox et al
Filing
117
OPINION AND ORDER denying Plaintiff Clinton Burns, IIIs Motion to Alter or Amend 116 . Signed by Judge William S. Duffey, Jr on 11/4/16. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLINTON BURNS, III,
Plaintiff,
v.
1:10-cv-3667-WSD
JOHN B. FOX, Warden, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff Clinton Burns, III’s (“Plaintiff”)
Motion to Alter or Amend [116] (“Motion to Alter”).
I.
BACKGROUND
On November 29, 2010, Plaintiff, a prisoner, filed his Complaint [9] alleging
that prison employees violated his civil rights. He asserted that Defendant Kendall
Talley (“Talley”), a case manager, violated Plaintiff’s privacy rights by giving
information from his Presentence Investigation Report (“PSR”) to a fellow inmate
for that inmate to deliver to Plaintiff. When Plaintiff complained, Talley allegedly
responded in a threatening and belligerent manner. Plaintiff claimed he was
transferred to another prison in retaliation for seeking administrative relief.
On January 21, 2014, the Magistrate Judge issued his Final Report and
Recommendation [92] (“R&R”), recommending the dismissal of Plaintiff’s
Complaint for failure to exhaust his administrative remedies. The Magistrate
Judge found that Plaintiff did not exhaust the three levels of administrative review
available to him. Plaintiff did not raise his retaliatory transfer claims in his initial
administrative complaint, he filed his first administrative appeal at the wrong
regional office, he filed his second administrative appeal before correctly filing his
first appeal, and he failed to remedy any of these deficiencies. On
February 19, 2014, the Court adopted the R&R, rejected Plaintiff’s objections, and
dismissed Plaintiff’s Complaint. ([96] (“February 2014 Order”)).
On April 2, 2014, the Court denied [101] Plaintiff’s Motion to Alter or
Amend [98] the February 2014 Order. On April 11, 2014, Plaintiff filed his Notice
of Appeal of the Court’s April 2, 2014, Order. ([102]). On September 17, 2014,
the Court of Appeals for the Eleventh Circuit dismissed [108] Plaintiff’s appeal as
frivolous. On December 3, 2014, the Court of Appeals denied [109] Plaintiff’s
motion for reconsideration.
On December 15, 2015, Plaintiff filed his Motion for Relief from a Void
Judgement Pursuant to Fed. R. Civ. P. Rule 60(D)(3) [111] (“Motion for Relief”),
seeking to set aside the Court’s February 2014 Order because of “fraud on the
court.” Fed. R. Civ. P. 60(d)(3). Plaintiff asserted (1) that Talley, in his
2
declaration, falsely stated that he watched an inmate deliver the PSR information to
Plaintiff, (2) that Defendant Onnie Baxter, Jr. (“Baxter”), in his declaration, falsely
stated that he never withheld administrative remedy forms or responses from
Plaintiff, and (3) that the Government knowingly sent to Plaintiff’s previous
address Defendants’ response to Plaintiff’s R&R objections. On June 13, 2016, the
Court denied Plaintiff’s Motion for Relief because the alleged conduct did not
constitute “fraud on the court,” was not supported by clear and convincing
evidence, and did not cause or materially impact the Court’s prior finding that
Plaintiff failed to exhaust his administrative remedies. ([115] (“June 2016
Order”)).
On June 23, 2016, Plaintiff, proceeding pro se, filed his Motion to Alter.
Relying on Rule 59(e) of the Federal Rules of Civil Procedure, Plaintiff asks the
Court to “vacate” its June 2016 Order. ([116] at 4). Plaintiff argues that he was
not required to exhaust his administrative remedies because prison officials
prevented him from doing so and thus his remedies were not “available” under
Ross v. Blake, 136 S. Ct. 1850 (June 6, 2016).
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II.
DISCUSSION
A.
Legal Standard
“A motion for reconsideration made after final judgment falls within the
ambit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b)
(motion for relief from judgment or order).” Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 906 n.5 (11th Cir. 1993). The Court
does not reconsider its orders as a matter of routine practice, LR 7.2(E), NDGa,
and “reconsideration of a previous order is an extraordinary remedy to be
employed sparingly,” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d
1366, 1370 (S.D. Fla. 2002). Motions for reconsideration must be filed “within
twenty-eight (28) days after entry of the order or judgment.” LR 7.2(E), NDGa.
Motions for reconsideration under Rule 59(e) are appropriate only where
there is newly-discovered evidence,1 or a need to correct a manifest error of law or
fact. See Hood v. Perdue, 300 F. App’x 699, 700 (11th Cir. 2008); see
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (“The only grounds for
1
Evidence that could have been discovered and presented on the previously
filed motion is not newly discovered. See Arthur v. King, 500 F.3d 1335, 1343-44
(11th Cir. 2007); see also Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir.
1997) (“We join those circuits in holding that where a party attempts to introduce
previously unsubmitted evidence on a motion to reconsider, the court should not
grant the motion absent some showing that the evidence was not available during
the pendency of the motion.”).
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granting a Rule 59 motion are newly-discovered evidence or manifest errors of law
or fact.”); Jersawitz v. People, 71 F. Supp. 2d 1330, 1344 (N.D. Ga. 1999).
A motion for reconsideration should not be used to present the Court with
arguments already heard and dismissed, or to offer new legal theories or evidence
that could have been presented prior to the entry of judgment. See Arthur, 500
F.3d at 1343-44; O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992);
Bryan v. Murphy, 246 F. Supp. 2d 1256, 1259 (N.D. Ga. 2003); see also
Jones v. S. Pan Servs., 450 F. App’x 860, 863 (11th Cir. 2012) (“A motion to alter
or amend a judgment cannot be used to relitigate old matters, raise arguments, or
present evidence that could have been raised prior to the entry of judgment.”);
Pres. Endangered Areas, 916 F. Supp. at 1560 (“A motion for reconsideration is
not an opportunity for the moving party and their counsel to instruct the court on
how the court ‘could have done it better’ the first time.”). “[T]he moving party
must set forth facts or law of a strongly convincing nature to induce the court to
reverse its prior decision.” Burger King, 181 F. Supp. 2d at 1369. Whether to
grant a motion for reconsideration is “committed to the sound discretion of the
district judge.” Townsend v. Gray, 505 Fed. App’x 916, 917 (11th Cir. 2013)
(per curiam).
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B.
Analysis
Plaintiff’s Motion to Alter does not assert facts justifying relief under
Rule 59(e). Plaintiff’s argument that he was prevented from accessing his
administrative remedies, and thus satisfied the exhaustion requirement, has no
bearing on the Court’s June 2016 Order that he seeks to vacate. The June 2016
Order found that Plaintiff failed to show Defendants committed fraud on the
Court.2 It did not address the Court’s prior finding, in 2014, that Plaintiff “did not
properly exhaust his administrative remedies prior to filing this suit.” ([96] at 2;
see also [101] (denying Plaintiff’s motion to alter or amend the Court’s prior order
dismissing Plaintiff’s Complaint for failure to exhaust his administrative
remedies)).
To the extent Plaintiff means to challenge the Court’s February 2014
Order dismissing his Complaint for lack of exhaustion, his Motion to Alter also
fails. Ross found that an inmate “must exhaust available remedies, but need not
exhaust unavailable ones.” Ross, 136 S. Ct. at 1858. The Supreme Court stated
2
Rule 60(d)(3) permits a litigant to obtain relief from a final judgment or
order if he can show “fraud on the court.” Fed. R. Civ. P. 60(d)(3). “[O]nly the
most egregious misconduct, such as bribery of a judge or members of a jury, or the
fabrication of evidence by a party in which an attorney is implicated, will
constitute a fraud on the court.” Galatolo v. United States, 394 F. App’x 670, 672
(11th Cir. 2010) (internal quotation marks omitted) (quoting Rozier v. Ford Motor
Co., 573 F.2d 1332, 1338 (5th Cir. 1978)).
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that an administrative remedy is “unavailable” where “prison administrators thwart
inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1860. This does not change the law of
this Circuit because, even before Ross, “it [was] axiomatic that a prison
administration may not thwart an inmate’s attempts to exhaust administrative
remedies, then cite the inmate’s failure to exhaust as a defense to an action filed in
court.” Scaff-Martinez v. Reese, No. 1:10-cv-00549-CLS, 2012 WL 6754889, at
*10 (N.D. Ala. Aug. 31, 2012), report and recommendation adopted, No. 1:10-cv00549, 2012 WL 6754893 (N.D. Ala. Dec. 27, 2012).
Plaintiff previously used this language from Reese in his objections to the
R&R and in his motion challenging the Court’s February 2014 Order. (See [94] at
4-5; [98] at 2). His argument was rejected by both this Court and the Court of
Appeals. ([96]; [101]; [106]). Plaintiff does not explain why his previously
rejected argument should now be accepted, and fails to offer specific facts—much
less new facts—showing that his administrative remedies were unavailable. See
Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001)
(“[A] motion for reconsideration should not be used to reiterate arguments that
have been made previously.”). Plaintiff has not shown “extraordinary
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circumstances” warranting relief, and his Motion to Alter is denied. Id. (motions
for reconsideration “should be reserved for extraordinary circumstances”).3
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Clinton Burns, III’s Motion to
Alter or Amend [116] is DENIED.
SO ORDERED this 4th day of November, 2016.
3
To the extent Plaintiff seeks to challenge the Court’s February 2014 Order,
his Motion to Alter also is untimely because motions for reconsideration must “be
filed with the clerk of court within twenty-eight (28) days after entry of the order
or judgment.” LR 7.2(E), NDGa.
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