Kenney v. Davis

Filing 10

ORDER ENTERED: Plaintiff's motion 9 for reconsideration is treated as a motion under Fed.R.Civ.P. Rule 60(b) and denied. Signed by Senior District Judge Sam A. Crow on 10/25/2011. (Mailed to pro se party Eugene Kenney by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EUGENE KENNEY,
Plaintiff,
v.

CASE NO.

10-3183-SAC

CAPTAIN ALLEN,
CCA-Leavenworth,
Defendant.
O R D E R
This civil complaint was dismissed, without prejudice, and
all relief was denied by Order entered November 18, 2010. On April
21, 2011, plaintiff submitted a document with no caption, case
number, or title in which he asks the court to allow him to
continue this suit.

The clerk docketed this correspondence as

plaintiff’s Motion for Reconsideration (Doc. 9).
“Parties seeking reconsideration of dispositive orders or
judgments must file a motion pursuant to Fed. R. Civ. P. 59(e) or
60(b).”

D.Kan. Rule 7.3.

The Tenth Circuit Court of Appeals has

discussed “self-styled” motions to reconsider as follows:
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
10 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 10
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).1

Rule 59(e) was amended in 2009

to change the time frame to 28 days.

Petitioner’s Motion for

Reconsideration was filed 5 months after entry of judgment in this
matter.

Accordingly, it is liberally construed 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).
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); Allender v. Raytheon
Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006)(citations
omitted)(Relief under Rule 60(b) is “extraordinary and may be
granted only in exceptional circumstances.”).
is

not

a

vehicle

to

rehash

or

restate

A Rule 60(b) motion

arguments

previously

addressed or to present new legal theories or supporting facts that
could have been included in earlier filings. 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); Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000).
for appeal.

Id.; Cashner v. Freedom Stores, Inc., 98 F.3d 572,

576-77 (10th Cir. 1996).

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Nor is it to be used as a substitute

The party seeking relief from a judgment

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

bears

the

burden

of

demonstrating

prerequisites for such relief.

that

he

satisfies

the

Van Skiver v. U.S., 952 F.2d 1241,

1243-44 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).

“A

litigant shows exceptional circumstances by satisfying one or more
of Rule 60(b)’s six grounds for relief from judgment.”2

Id. at

1244; Cashner 98 F.3d at 576-77.
Mr. Kenney does not identify a subsection of Rule 60(b) as
the basis for his motion.

The few facts he alleges in his motion

do not show “mistake, inadvertence, surprise or excusable neglect”
that would warrant relief under Rule 60(b)(1).

He does not cite

any “newly discovered evidence” that could entitle him to relief
under Rule 60(b)(2).

He does not allege any facts showing “fraud,

misrepresentation, or misconduct” that would justify relief under
Rule 60(b)(3).

He alleges no facts suggesting that the prior

judgment is “void” and that relief is therefore available under
Rule 60(b)(4). Nor has he shown that the prior dismissal “has been
satisfied, released or discharged” warranting relief pursuant to
Rule 60(b)(5).

It thus appears that the “catchall” provision in

Rule 60(b)(6) provides the only plausible basis for plaintiff’s

2
Rule 60(b) provides in pertinent part that the court may relieve a
party from a final judgment for the following reasons:

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).

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request for relief from the Order dismissing this action.
Having carefully considered Mr. Kenny’s motion, the court
finds

that

he

has

failed

to

identify

any

“extraordinary

circumstances” that warrant relief under Rule 60(b)(6).

As the

basis for this motion, he claims that the court erred in holding he
was required to exhaust administrative remedies prior to filing his
complaint in federal court. In support, he cites two cases for the
proposition that exhaustion is not required in a Bivens action
seeking only money damages because the administrative remedy cannot
afford him either meaningful review or an appropriate remedy.
In 1996, Congress enacted the Prison Litigation Reform Act
(PLRA), which amended 42 U.S.C. § 1997e(a) to provide that:
[n]o action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner
confined
in
any
jail,
prison,
or
other
correctional facility until such administrative
remedies as are available are exhausted.
Id. This law makes clear that the exhaustion requirements apply to
Bivens suits. The United States Supreme Court has interpreted this
language, with direct reference to Bivens complaints seeking money
damages only, to also mean that a prisoner is required “to exhaust
the grievance procedures offered, whether or not the possible
responses cover the specific relief the prisoner demands.”
v. Churner, 532 U.S. 731, 738 (2001).

Booth

The Supreme Court in Booth

expressly found that Congress had replaced the text of the statute
as construed in McCarthy v. Madigan, 503 U.S. 140 (1992), upon
which plaintiff relies, to “preclude the McCarthy result.”
532 U.S. at 740.

Booth,

The Court concluded that Congress “has mandated

exhaustion clearly enough, regardless of the relief offered through
4

administrative procedures.”

Id. at 741; see Yousef v. Reno, 254

F.3d 1214, 1218 n.2 (10th Cir. 2001).
Plaintiff is not entitled to Rule 60(b) relief because he
is making a new argument or presenting supporting facts that were
available prior to dismissal of this action.

Furthermore, the

court finds that the argument he makes has no legal merit.

In sum,

plaintiff has failed to allege any change of circumstances since
the entry of judgment herein and does not allege any circumstances
warranting relief under Rule 60(b).
IT

IS

THEREFORE

ORDERED

that

plaintiff’s

Motion

for

Reconsideration (Doc. 9) is treated as a Motion under Fed.R.Civ.P.
Rule 60(b) and denied.
IT IS SO ORDERED.
Dated this 25th day of October, 2011, at Topeka, Kansas.

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

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