Norris v. Hickey et al

Filing 58

MEMORANDUM ORDER: (1) Plaintiff's 56 ex parte letter addressed to the undersigned is construed as a motion filed pursuant to Rule 60(b). (2) Plaintiff's 56 construed Rule 60(b) motion is DENIED. (3) Clerk shall provide a copy of this Memorandum Order to the 6CCA, referencing Case No. 11-6227. Signed by Judge Karl S. Forester on November 10, 2011. (AWD) cc: COR,Plt via US Mail,6CCA

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 09-CV-339-KSF
LARRY NORRIS,

V.

PLAINTIFF

MEMORANDUM ORDER

DR. MICHAEL GROWSE, et al.,

DEFENDANTS
**** **** **** ****

The Court is in receipt of a two-page, typewritten letter dated October 16, 2011, from
plaintiff concerning the following filings made by counsel for defendant Quentin Moore:
1. Defendant Quentin Moore’s motion for a protective order filed on July 21, 2011 [R. 40],
and Moore’s supplemental motion for a protective order filed on August 2, 2011 [R. 43].
2. The “Sworn Declaration of Nurse Mullins” filed on September 16, 2011 [R. 48].
Plaintiff claims that defendant’s counsel failed to serve him with these filings prior to the court’s
decision granting summary judgment to defendant Quentin Moore and dismissing this action on
September 21, 2011, and that subsequently, he had never received these filings. Plaintiff requests
assistance from the court.
DISCUSSION/ANALYSIS
A.

Ex parte communication
At the outset, the Court will address the impropriety of plaintiff’s ex parte communication.

Numerical paragraph 15 of the Memorandum Opinion and Order of June 22, 2010, advised plaintiff
as follows:

(15).

Norris must communicate with the Court solely through notices or motions
filed with the Lexington Clerk’s Office. The Court will disregard
correspondence sent directly to the judge’s chambers.

Memorandum Opinion And Order, 6/22/2010, ¶ 15 [R. 10].
Plaintiff’s letter dated October 16, 2011, is addressed to the presiding judge and was directed
to the judge’s chambers rather than being filed of record. Thus, this letter is an unauthorized ex parte
communication with the court, as it contains no notation that a copy thereof was provided to
defendant’s counsel. For this reason, the court requested the Clerk of the Court to file this letter in
the record; it was docketed on October 31, 2011 [R. 56], and defendant’s counsel has filed a
response thereto [R. 57].
Regardless of the Court’s previous announcement that any ex parte correspondence would
be disregarded, given the facts and circumstances of this particular case, and given that respondent’s
counsel has filed a response to plaintiff’s ex parte letter, the Court exercises its discretion to
consider this letter. However, plaintiff is advised once more to engage in no further ex parte
communications with the Court; all communication must be made through the filing of notices
or motions. These submissions should be addressed only to the Clerk of the Court and should
contain the case caption and case number of this proceeding, as set forth in the caption of this
Order. Also, all submissions must be accompanied by a certificate of service verifying that a
copy thereof has been served to the opposing party or to that party’s counsel; failure to do so
will result in the Court disregarding the filing.
B.

Appeal
On September 21, 2011, the Court granted defendant Quentin Moore’s motion for summary

judgment and dismissed this case. [R. 49, 50]. Plaintiff has appealed that decision to the United
2

States Court of Appeals for the Sixth Circuit. See Larry Norris v. Michael Growse, et al., Case No.
11-6227.
Generally, the filing of an appeal divests the trial court of jurisdiction. Griggs v. Provident
Consumer Disc. Co., 459 U.S. 56, 58 (1982); Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir.
1993); Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992). However, the Sixth Circuit has created
an exception to this rule by allowing district courts to entertain a motion for relief from judgment
after an appeal has been filed if it so chooses. First National Bank of Salem, Ohio v. Hirsch, 535
F.2d 343, 346 (6th Cir. 1976). Whether to entertain this type of post-judgment motion while an
appeal is pending is a decision within the district court’s discretion. LSJ Investment Co. v. O.L.D.,
Inc., 167 F.3d 320, 324 (6th Cir. 1999). The Court elects to exercise its discretion and entertain
Norris' request for relief from judgment.
C.

Construction of letter as motion for post-judgment relief
A court may alter a judgment pursuant to Fed. R. Civ. P. 59(e) if the judgment was premised

upon a clear misunderstanding of the controlling law or the issues presented by the parties or where,
after entry of the judgment, the parties discover previously-unavailable and material evidence or
there is an intervening change in the controlling law. Owner-Op. Indep. Drivers Ass’n v. Arctic
Express, 288 F. Supp. 2d 895, 900 (S. D. Ohio 2003); Braxton v. Scott, 905 F. Supp. 455 (N.D. Ohio
1995).
Additionally, Fed. R. Civ. P. 60(b) permits relief from judgment for:

(1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud,
misrepresentation, or other misconduct of an adverse party; (4) a void judgment; (5) a judgment that
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has been satisfied, released, or discharged, or a prior judgment upon which it is based that has been
reversed or otherwise vacated; or (6) any other reason justifying relief from the operation of the
judgment.
Norris is not entitled to post-judgment relief under either Rule 59(e) or Rule 60(b). Rule
59(e) does not apply because the Court did not grant summary judgment against him based on a clear
misunderstanding of either the controlling law or the issues;1 no intervening change in the controlling
law has occurred; and Norris does not offer previously-unavailable and newly discovered material
evidence, which by due diligence he could not have discovered earlier. Similarly, Rule 60(b)(1)-(3)
does not assist Norris because he does not allege grounds constituting mistake, inadvertence,
surprise, or excusable neglect; he does not allege fraud, misrepresentation, or other misconduct by
the United States; and he again does not present newly discovered evidence, which by due diligence
he could not have discovered earlier. Thus, neither Rule 60(b) (4) nor Rule 60(b)(5) applies to this
case under any scenario.
Norris simply claims that counsel for the United States failed to serve him with pleadings and
an affidavit, and that he did not receive two motions for protective Order filed in July 2011 and
August 2011, respectively, or the Nurse's Affidavit sent to him on September 16, 2011. Cheryl
Morgan's response to plaintiff’s letter refutes this allegation. She certified that she mailed all of
those documents to him on those dates at his current address, and she advised the Court that NONE
of them were returned to her in mail marked as undeliverable. Assuming the truthfulness of both
plaintiff’s allegation that he did not receive the filings in question and Cheryl Morgan’s statement
1

The Court granted summary judgment to defendant Quentin Moore, an employee of the
Public Health Service, because he is protected from suit by the statutory immunity afforded all
PHS Employees Under 42 U.S.C. § 233(a).
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that she sent these filings to plaintiff on the dates certified and that they had not been returned to her
as being undeliverable mail, that scenario does not change the fact that defendant Quentin Moore,
as a PHS employee, is immune from suit by the statutory immunity provided to PHS employees
under 42 U.S.C. § 233(a). For that reason, the statutory immunity, it is irrelevant whether plaintiff
did or did not receive the filings that are the subject of his letter. Plaintiff also challenges the
veracity of Quentin Moore’s affidavit. However, for the same reason, the statutory immunity, the
accuracy or truthfulness or lack thereof of any statements contained in Quentin Moore’s affidavit is
of no consequence in this particular case. Consequently, even if plaintiff did not receive the subject
filings and had no opportunity to respond to those statements, he was not prejudiced thereby.
At best, Norris' claims would fall under Fed. R. Civ. P. 60(b)(6), the residual provision. That
subsection provides relief from judgment only in the unusual and extreme situation when “principles
of equity” mandate relief. See Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit
Fund, 249 F.3d 519, 524 (6th Cir. 2001). Such a situation does not exist in this case, where the
Court fully considered Norris’ medical records and the government’s medical proof, and addressed
Norris' claims and arguments opposing the government’s motion for summary judgment. For the
reasons stated in the Memorandum Opinion and Order granting summary judgment to defendant
Quentin Moore, the Court properly determined that under the statute, 42 U.S.C. § 233(a), and Hui
Hui v. Castaneda, ___ U.S. ___, 130 S.Ct. 1845 (2010), PHS immunity bars Norris' claims against
Quentin Moore.
Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiff’s ex parte letter addressed to the undersigned is construed as a motion filed

pursuant to Rule 60(b).
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2.

Plaintiff’s construed Rule 60(b) motion [R. 57] is DENIED.

3.

The Clerk of the Court shall provide a copy of this Memorandum Order to the United

States Court of Appeals for the Sixth Circuit, referencing Case No. 11-6227.
This November 10, 2011

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