Markovich v. Correct Care Solutions et al

Filing 28

ORDER ENTERED: Plaintiff's motion to reopen this action is treated as a motion under Fed.R.Civ.P. Rule 60(b) and is denied. Plaintiff's request 25 for order for records and motion 26 for alteration of previous order are denied. Plaintiff's motion 27 to withdraw motion to amend is granted and his motion 24 to amend is denied as a result. Signed by Senior District Judge Sam A. Crow on 9/20/2011. (Mailed to pro se party Matthew Paul Markovich by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MATTHEW PAUL
MARKOVICH,
Plaintiff,
v.

CASE NO. 10-3097-SAC

CORRECT CARE
SOLUTIONS,
et al.,
Defendants.
O R D E R
This civil complaint filed by a Kansas prison inmate was
dismissed, without prejudice, by Order entered July 8, 2010.

The

reason for the dismissal was plaintiff’s failure to show exhaustion
of administrative remedies. The matter is now before the court upon
plaintiff’s Motion to Reopen Case (Doc. 23), plaintiff’s Request for
Order for Records (Doc. 25), and plaintiff’s Motion for Alteration
of Previous Order (Doc. 26).1

Having considered these motions

together with the case file, the court finds as follows.
In plaintiff’s Motion to Reopen Case, he alleges that he
“believes”
remedies.”

he

“has

now

exhausted

his

available

administrative

He attaches exhibits, which he claims show full and

proper exhaustion.

He argues that he has “provided KDOC officials

ample opportunities to correct the issues.”
The Tenth Circuit Court of Appeals has discussed “self-styled”
motions to reconsider as follows:

1
Plaintiff also filed a Motion to Amend (Doc. 24); however, he
withdraws this motion and asks the court to disregard it (Doc. 27). For this
reason, plaintiff’s Motion to Amend is denied.

A motion for reconsideration, not recognized by the
Federal Rules of Civil Procedure, Clough v. Rush, 959 F.2d
182, 186 n. 4 (10th Cir. 1992), may be construed in one of
two ways: if filed within (28)2 days of the district
court’s entry of judgment, it is treated as a motion to
alter or amend the judgment under Rule 59(e); if filed
more than (28) days after entry of judgment, it is treated
as a motion for relief from judgment under Rule 60(b).
Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d
1292, 1296 n. 3 (10th Cir. 2002).3

Plaintiff’s motion was filed on

January 26, 2011, which was more than 28 days after judgment was
entered in this case.

Accordingly, it is treated as a motion for

relief from judgment under Fed.R.Civ.P. Rule 60(b).

Weitz v.

Lovelace Health System Inc., 214 F.3d 1175, 1178 (10th Cir. 2000).
Relief under Rule 60(b) is “extraordinary and may be granted
only in exceptional circumstances.”

Allender v. Rayatheon Aircraft

Co., 439 F.3d 1236, 1242 (10th Cir. 2006)(quoting Cashner v. Freedom
Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996)(quoting Bud Brooks
Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440
(10th Cir. 1990)); Amoco Oil Co. v. United States Environmental
Protection Agency, 231 F.3d 694, 697 (10th Cir. 2000); Servants of
Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000); Van Skiver
v. U.S., 952 F.2d 1241, 1243-44 (10th Cir. 1991), cert. denied, 506
U.S. 828 (1992)(citing Bud Brooks Trucking, 909 F.2d at 1440).
2

A

Fed.R.Civ.P. Rule 59(e) was amended, effective December 1, 2009, to
allow twenty-eight days after the entry of judgment for the filing of a motion to
alter or amend judgment.
3

The Tenth Circuit further explained:

The distinction is significant because a Rule 59(e) motion tolls the
thirty-day period for appeal while a Rule 60(b) motion does not. Id.
Thus, “an appeal from the denial of a motion to reconsider construed
as a Rule 59(e) motion permits consideration of the merits of the
underlying judgment, while an appeal from the denial of a Rule 60(b)
motion does not itself preserve for appellate review the underlying
judgment.” Id. (citing multiple cases).
Id. at *2.

2

Rule 60(b) motion is not a vehicle to reargue the merits of the
underlying judgment, to advance new arguments which could have been
presented in the plaintiff’s original filings, or as a substitute
for appeal. Servants, 204 F.3d at 1012; Cashner, 98 F.3d at 576-77;
Wilkins v. Packerware Corp., 238 FRD 256, 263 (D.Kan. 2006), aff’d
260 Fed.Appx. 98 (10th Cir. 2008)(citing Brown v. Presbyterian
Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996)).

The party

seeking relief from a judgment bears the burden of demonstrating
that he satisfies the prerequisites for such relief.

Van Skiver,

952 F.2d at 1243-44. “A litigant shows exceptional circumstances by
satisfying one or more of Rule 60(b)’s six grounds for relief from
judgment.”4

Id. at 1244; Cashner, 98 F.3d at 576-77.

Mr. Markovich does not specify any ground from Rule 60(b) in
his motion to reopen.

The court finds no basis to liberally

construe the allegations in his motion as presenting grounds for
relief under subsections (3), (4), or (5).

Movant does not allege

facts showing an intervening change in the law.

Nor does he show

that reason exists to void the judgment, or that he has evidence of
fraud or other misconduct by a party.
The motion might be liberally read as asserting under Rule
60(b)(1) that the court was mistaken in finding that plaintiff had

4
Rule 60(b) provides in pertinent part that the court may relieve a
party from a final judgment 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 . . . misrepresentation, or other 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 (6) any other reason that justifies relief.
Fed.R.Civ.P. 60 (b).

3

not exhausted administrative remedies.

However, in support of this

assertion, plaintiff re-argues that his emergency grievance to the
Secretary

of

Corrections

constituted

exhaustion.

He

cannot

establish that he is entitled to post-judgment relief by rehashing
this argument, which was already presented to and rejected by the
court.5
The motion might also be read as asserting under Rule 60(b)(2)
that Mr. Markovich has some new evidence of exhaustion.

However,

the court finds that the exhibits relied upon by plaintiff do not
establish either that the court was mistaken in its ruling or that
plaintiff is entitled to post-judgment relief under subsection (2).
Plaintiff’s exhibits A and B of a “Special Problem Grievance”6 sent
by him to the Secretary of Corrections, just like his emergency
grievance, do not show that Mr. Markovich “followed the established
KDOC procedures for filing and appealing inmate grievances to obtain
the relief” he sought in the complaint, or that he “filed an inmate
grievance at each level asking that he be provided with certain or
proper medication, or complaining that he is not receiving proper
mental health care.”

As Mr. Markovich was informed, in order to

exhaust, the inmate must properly complete all steps of the normal
prison grievance procedure.

The court previously explained to Mr.

5

The Tenth Circuit also specifically rejected this argument on appeal,
noting that prison officials found Mr. Markovich’s grievance presented as an
emergency did not qualify as one and thus did not serve to satisfy the exhaustion
prerequisite.
6
KS ADC § 44-15-201 describes special circumstances under which an
inmate may forego the normal grievance procedure, and present his problem to the
attention of a higher authority. Plaintiff does not allege nor does his grievance
reflect that special circumstances existed to allow him to utilize this special
process.
Nor does he show that his special grievance was accepted as such.
Section 44-15-201 provides that any department of corrections official who
receives an inappropriate complaint under this provision may return it to the
inmate and require him to use the normal grievance process. Plaintiff alleges
that his special grievance was returned unanswered.

4

Markovich that his attempts to bypass the normal procedures were not
sufficient to show the proper and full exhaustion mandated by 42
U.S.C. § 1997e.

Furthermore, plaintiff’s special grievance, which

was mailed in October 2010, fails to show that Mr. Markovich fully
exhausted his administrative remedies prior to filing this lawsuit
as required by § 1997e.

Plaintiff’s Exhibit C is correspondence

from a Classification Manager that references a letter written by
Mr. Markovick to the Secretary of Corrections.

This correspondence

is not evidence that Mr. Markovich sought administrative relief by
properly utilizing all steps of the established prison grievance
procedure.

The

court

also

finds

that

plaintiff’s

conclusory

statement that he has provided “KDOC officials ample opportunities”
is not evidence of exhaustion.

In any event, if plaintiff had

evidence of exhaustion that could have been presented before this
case was closed, but was not, he may not rely upon it now as grounds
for relief under Rule 60(b).

In addition, allegations made by

plaintiff in another case that he received threats for using the
grievance

procedure

and

that

“KDOC”

was

in

“substantial

noncompliance” with its grievance procedure do nothing to establish
that administrative remedies were unavailable or actually impeded as
to his claims in this case.

The court concludes that plaintiff’s

allegations and exhibits do not establish that the court erred in
holding that plaintiff failed to exhaust his administrative remedies
prior to filing the complaint in this case.

Nor do they establish

that plaintiff has new credible evidence of exhaustion that, with
reasonable diligence, could not have been discovered in time to move
for a new trial.
The court also finds that plaintiff states no facts to support
5

a claim for relief under the catchall subsection of Rule 60(b)(6).
The Supreme Court has held that “a movant seeking relief under Rule
60(b)(6) . . . [must] show ‘extraordinary circumstances’ justifying
the reopening of a final judgment.”

Gonzalez v. Crosby, 545 U.S.

524, 535 (2005)(citation omitted).

Mr. Markovich has failed to

identify any “extraordinary circumstances” that warrant relief under
Rule 60(b)(6).

In sum, plaintiff has alleged no facts showing that

he is entitled to have this case re-opened or to any other postjudgment relief from the judgment of dismissal.
In plaintiff’s Request for Order for Records, the court is
asked to order “defendants” to “deliver a copy of his Mental Health
Records to him.”

This motion contains no factual or legal basis

showing that plaintiff is entitled to the requested relief.

The

court denies this motion as inappropriately filed in a closed case
and because no basis whatsoever is stated for the motion.
Plaintiff’s Motion for Alteration of Previous Order is at least
his third attempt to urge this court to alter its prior orders
assessing court filing fees against him.

In this motion, he asks

the court to terminate the automatic deductions of monthly payments
from his inmate account for filing fee obligations that he incurred
by filing three civil actions in federal court and an appeal.

In

support, he alleges that he will soon be admitted into a work
release program and will need his incoming funds after he has paid
room and board, restitution, and for any necessary medical care, in
order to “save for trade tools, housing, transportation, and other
necessities.”

Plaintiff alternatively asks the court to order that

the court fees, which he alleges are now taken before all other
deductions, be taken “only after all other deductions have been
6

taken.”
As plaintiff has been plainly advised more than once, he became
financially obligated under federal law, 28 U.S.C. § 1915(b)(1), to
pay the statutory filing fees in full upon his filing of each
federal complaint and appeal. This court does not have authority to
terminate the remainder of his statutory fee obligations based
merely upon his bald statements that he anticipates additional
expenses once he is in a work release program.7

Mr. Markovich

presents no legal authority or argument for this court to find that
he is entitled to the blanket alternative orders that he seeks.8
Nor does he allege facts9 to convince the court that it has the
authority to order that the fees assessed against him be collected
other than as provided in 28 U.S.C. § 1915(b)(2), or to order that
fee payments for court filing fees be collected from plaintiff’s
inmate account only after any other unrelated deductions not ordered
by this court. In short, plaintiff presents neither legal authority

7

The court notes the following remarks by the Tenth Circuit in
Christensen v. Big Horn County Bd. of County Com’, 374 Fed.Appx. 821, 830 n. 7
(10th Cir. 2010)(unpublished and thus not cited as precedent):
[S]everal circuits have held that once a prisoner is released, any §
1915 partial payment obligations cease altogether (several circuits
disagree). See Carson v. Tulsa Police Dep’t, 266 Fed.Appx. 763, 766
(10th Cir. 2008)(noting circuit split and declining to take a side,
as issue was moot under the circumstances).
Id.
8
For example, plaintiff does not discuss regulations or guidelines
regarding income that might be earned by him in a work release program and reveal
what expenses might be deductible from those earnings. Such deductions might
conceivably include victim restitution, and court costs, as well as housing and
medical expenses.
9

For example, plaintiff has not provided a detailed itemized statement
of non-discretionary expenses actually incurred for a particular month together
with an itemization of the income to his prison account for that month, and based
upon this detailed information argued that he is unable to pay more than a given
amount toward his court fees for a certain month. Cf. Cosby v. Meadors, 351 F.3d
1324 (10th Cir. 2003).

7

nor sufficient factual basis for this motion.

As he has been

informed, he is not entitled to challenge the assessment of monthly
payments

for

filing

fee

purchases made by him.

obligations

based

upon

discretionary

The court concludes that plaintiff has

presented no reason for this court to alter its prior Orders
regarding his payments of court fees.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion to
Reopen this action is treated as a Motion under Fed.R.Civ.P. Rule
60(b) and is denied.
IT IS FURTHER ORDERED that plaintiff’s Request for Order for
Records (Doc. 25) and Motion for Alteration of Previous Order (Doc.
26) are denied.
IT IS FURTHER ORDERED that plaintiff’s Motion to Withdraw
Motion to Amend (Doc. 27) is granted, and his Motion to Amend (Doc.
24) is denied as a result.
IT IS SO ORDERED.
Dated this 20th day of September, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

8