Shaw v. Upton et al

Filing 139

ORDER denying 113 Motion to be Relieved of Court; denying 122 Motion for Evidentiary Hearing. The Court dismisses as premature this portion of Plaintiff's Motion, as no motion for summary judgment is currently pending before the Court. Signed by Chief Judge J. Randal Hall on 03/29/2018. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

DEXTER SHAW,
CIVIL ACTION NO.: 6:16-cv-6

Plaintiff,
V.

STEVE UPTON; WARDEN ROBERT
TOOLE; JOHN PAUL; JANET BREWTON;
ROY SABINE; MILTON SMITH; and LISA
FOUNTAIN,
Defendants.

ORDER

Presently before the Court are Plaintiffs Motion to be Relieved of the Court's Order,

which he has made pursuant to Federal Rule of Civil Procedure 60,(doc. 113), and Plaintiffs
Motion for Evidentiary Hearing, (doc. 122). Defendants filed Responses. (Docs. 117, 130.)
Plaintiff contends the new evidence he has attached to his Rule 60 Motion demonstrates fraud or

misrepresentation, and he cites to Rule 60(b)(3). For the reasons which follow, the Court
DENIES Plaintiffs Motions.

I.

Rule 60(b)(3) Motion

A court "may relieve a party . . . from a final judgment . . . for . . . fraud (whether

previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party[.]" Fed. R. Civ. P. 60(b)(3). The movant has the burden of proving that assertion by clear
and convincing evidence. Attea v. Univ. of Miami. 678 F. App'x 971, 974 (11th Cir. 2017)

(citing Rozier v. Ford Motor Co.. 573 F.2d 1332, 1339 (5th Cir. 1978)). "Evidence of an
opposing party's carelessness is insufficient to justify relief." Id (citing First Naf1 Life Ins. Co.

V. Cal. Pac. Life Ins. Co.. 876 F.2d 877, 883 (11th Cir. 1989)). "The moving party must also

demonstrate the alleged conduct prevented [him] from fully presenting [his] case." Guthrie v.
Wells Fargo Home Morte. NA.706 F. App'x 975,977(11th Cir. 2017)(citation omitted).

The Court's Order dated May 26, 2017,(doc. 62), is not a final judgment. Rather, the

Court granted Defendants' Motion to Dismiss, disposing of some—^but not all—of Plaintiffs
claims. However, the Court made clear in its Order that Plaintiffs:(1) denial of access to courts

claims against Defendants Fountain, Toole, and Smith; (2) claims that Defendants Upton and
Toole retaliated against Plaintiff by placing him on long-term disciplinary segregation; and

(3)First Amendment free exercise of religion claims against all Defendants remain pending. (Id
at p. 2.) Consequently, Plaintiff cannot use Rule 60(b)(3) as a means by which to attack this
Court's May 26,2017, Order.

Even if Plaintiff could use Rule 60(b)(3) to attack this Order, he still is not entitled to his

requested relief. A review of the documents Plaintiff submitted in support of his Motion fails to
reveal by clear and convincing evidence that Defendants committed fraud, misrepresentation, or
misconduct during the pendency of their motion to dismiss. Plaintiff filed his Complaint on

January 19, 2016, (doc. 1), and detailed events occurring on or before September 16, 2014,
(see doc. 4, pp. 2-5.) On September 26, 2016, Defendants moved to dismiss certain ofPlaintiffs
claims based on their assertion Plaintiff failed to exhaust his administrative remedies as to these

claims and because Plaintiffs transfer from Georgia State Prison mooted certain other claims.
(Doc. 25.)

In addressing Defendants' motion, the Magistrate Judge detailed and assessed five (5) of

Plaintiffs grievances to determine whether Plaintiff had exhausted his administrative remedies,
and the latest of those grievances was dated July 21, 2014. (Doc. 60, pp. 12-25.) The

Magistrate Judge specifically discussed Plaintiffs Grievance Number 173334, which is dated

April 29, 2014, wherein Plaintiff complained about being denied vegan meals and access to the
grievance procedures, as well as a purported unnumbered grievance filed on October 2, 2014,
detailing the lack of physical therapy. (Id. at pp. 13,17-20,22,24-25; Doc. 113, pp. 13-14,23.)

The Magistrate Judge thoroughly reviewed Plaintiffs grievance history filings, and he made
detailed findings as to Plaintiffs credibility as to his contentions regarding the filing and/or

alleged destruction of grievances. Plaintiff appears to make many of the same arguments in the
instant Motion as he already has on previous occasions. The Magistrate Judge rejected
Plaintiffs assertions, and the Court concurred with the Magistrate Judge's findings when

conducting its independent and de novo review of Defendants' motion to dismiss. What is more.
Plaintiffs instant filing—as the Court has determined on previous occasions—contains
unverifiable and non-enumerated grievance receipts. Even if the Court were to accept the filings

as being verifiable, these receipts provide no support for Plaintiffs seeming contention that he
exhausted his administrative remedies as to all of his claims. Rather, the most these grievance

receipts show is that Plaintiff may have filed these grievances at the institutional level.
However, these receipts offer no support for any contention Plaintiff properly completed the
administrative remedies process as to any ofthese grievances, as the Magistrate Judge detailed.
In sum. Plaintiff fails to meet his burden under Rule 60(b). Accordingly, the Court
DENIES Plaintiffs Motion.
11.

Motion for Reconsideration

Plaintiffs present Motion actually appears to be one moving for reconsideration of the
Court's May 26, 2017, Order. A motion for reconsideration, or a Federal Rule of Civil
Procedure 59(e) motion, is "an extraordinary remedy, to be employed sparingly." Smith ex rel.

Smith V. Augusta-Richmond County. No. CV 110-126, 2012 WL 1355575, at *1 (S.D. Ga. Apr.

18, 2012) (internal citation omitted). "A movant must set forth facts or law of a strongly

convincing nature to induce the court to reverse its prior decision." Id (internal citation
omitted). "The only grounds for granting a Rule 59 motion are newly-discovered evidence or
manifest errors of law or fact." Jacobs v. Tempur-Pedic Intern.. Inc.. 626 F.3d 1327, 1344 (11th

Cir. 2010)(quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)(internal punctuation
omitted)). "A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or

present evidence that could have been raised prior to the entry of judgment." Id (quoting
Michael Linet. Inc. v. Village of Wellington. 408 F.3d 757, 763 (11th Cir. 2005)(alterations
omitted)).

The Court discerns no reason to grant Plaintiffs Motion. He fails to present any newly-

discovered, material evidence in support of his Motion, and he does not demonstrate that the

Court's previously-entered Order represents a manifest error of law or fact. In fact, Plaintiff
offers no reason for the Court to reconsider its previously-entered Order. Accordingly, the Court
DENIES Plaintiffs Motion for Reconsideration. The Court's Order dated May 26, 2017,

remains the Order of the Court.' As the Magistrate Judge has already advised, the parties shall

have twenty-one(21)days from the date of this Order to file any desired dispositive motion.
III.

Motion for Evidentiary Hearing

In his Motion for an Evidentiary Hearing, (doc. 122), Plaintiff requests that the Court

hold an evidentiary hearing in support of his Motion for Jury Instructions, (doc. 115), and
Motion for Relief from Court Order and to oppose Defendants' not-yet-filed motion for

summary judgment. Through the parties' briefing on Plaintiffs Motions, the Court already has
' Plaintiffs pleading at Docket Number 114 has been linked to Defendants' Motion to Dismiss,
(doc. 25). This pleading is actually Plaintiffs Brief in Support of his Rule 60 Motion, and the Court has
considered the assertions in Plaintiffs Brief in reaching its decision.

sufficient information to assess these Motions. Accordingly, the Court exercises its discretion to

decide these Motions without a hearing. See Local R. 7.2 ("Motions shall generally be

determined upon the motion and supporting documents filed as prescribed herein."). The Court
DENIES Plaintiffs Motion for an Evidentiary Hearing regarding his Motion for Jury
Instructions and Motion to be Relieved of Court Order. To the extent Plaintiff seeks an

evidentiary hearing regarding a motion for summary judgment, the Court DISMISSES as

premature this portion of Plaintiffs Motion, as no motion for summary judgment is currently
pending before the Court.

so ORDERED,this^l^day of March,2018.

JUDGE
STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA