Davis v. Webb et al
MEMORANDUM AND ORDER re: 116 MOTION for Reconsideration re 113 Memorandum & Order, filed by Plaintiff Frederick P. Davis motion is DENIED. Signed by District Judge John A. Ross on 5/7/14. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FREDERICK P. DAVIS,
TERRY WEBB, et al.,
No. 4:11-CV-1906 JAR
MEMORANDUM AND ORDER
On March 28, 2014, this Court granted Defendants’ motion for summary judgment and
dismissed Plaintiff’s pro se action under 42 U.S.C. § 1983 for alleged violations of his First
Amendment rights. (Doc. No. 113) Plaintiff filed his Motion for Reconsideration on April 9,
2014. (Doc. No. 116) Defendants filed their response on April 16, 2014. (Doc. No. 117) Plaintiff
filed a reply on April 25, 2014. (Doc. No. 118) The motion is, therefore, fully briefed and ready
for disposition. For the following reasons the motion will be denied.
The factual background of this prisoner civil rights action is set forth in the Court’s
March 28, 2014 Memorandum and Order. Briefly, the Court ruled that Plaintiff’s claim of
retaliatory discipline failed as a matter of law because “some evidence” existed that Plaintiff
committed a prison rule violation, i.e., inciting organized disobedience.
Plaintiff brings this motion for reconsideration pursuant to Fed.R.Civ.P. 60(b). Rule 60(b)
motions may only be used to reconsider a final order on certain enumerated grounds such as “(1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud
. . . , misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged ...; or (6) any other reason that justifies
relief.” A party moving for reconsideration pursuant to any portion of Rule 60(b) must “establish
‘exceptional circumstances' to obtain the ‘extraordinary relief’ the rule provides.” Prosser v.
Nagaldinne, 2013 WL 308770, at *1 (E.D.Mo. Jan. 25, 2013) (quoting De Wit v. Firstar Corp.,
904 F.Supp. 1476, 1496 (N.D.Iowa 1995)). A Rule 60(b) motion is not a vehicle for rearguing
the merits of a claim. Harris v. Potter, 2009 WL 1045475, at *2 (E.D. Mo. Apr. 20, 2009).
Plaintiff argues the Court erred in finding he was not in compliance with Local Rule 74.01(E) because he failed to respond to Defendants’ statement of facts. (Doc. No. 116, pp. 1-4)
Plaintiff refers to his Verified Statement of Material Facts in Genuine Dispute wherein he
purported to controvert Defendants’ claims. (See Doc. No. 102-2) The rule governing responses
to motions for summary judgment is, however, clear. “Those matters in dispute shall be set forth
with specific references to portions of the record, where available, upon which the opposing
party relies. The opposing party also shall note for all disputed facts the paragraph number from
movant’s listing of facts. All matters set forth in the statement of the movant shall be deemed
admitted for purposes of summary judgment unless specifically controverted by the opposing
party.” E.D.Mo. L.R. 4.01. Further, as the Court noted in its Memorandum and Order, Plaintiff’s
failure to properly respond to the motion for summary judgment did not mean that summary
judgment would automatically be granted in favor of Defendants; Defendants were still required
to establish entitlement to judgment as a matter of law on those undisputed facts. See Autry
Morlan Chevrolet Cadillac, Inc. v. RJF Agencies, Inc., 332 S.W.3d 184, 191 (Mo.Ct.App. 2010).
Plaintiff also submits an affidavit which he contends controverts Defendants’ statement
of material facts. (Doc. No. 116, pp. 4-5; Doc. No. 116-1) Defendants argue that newly
submitted affidavits containing information that was previously available cannot support a
motion for reconsideration. (Doc. No. 117, pp. 1-2)
Upon review of Plaintiff’s motion and supporting affidavit, the Court finds Plaintiff is
largely reiterating the same arguments he made in opposition to Defendants’ motion for
summary judgment. See Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999) (noting that Rule
60(b) is “not a vehicle for simple reargument on the merits”). He raises none of the enumerated
grounds for granting Rule 60(b) relief and fails to otherwise show exceptional circumstances that
could cause the Court to reconsider its previous rulings. See Arnold v. Wood, 238 F.3d 992, 998
(8th Cir. 2001); Brooks v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 904 (8th Cir. 1997). For
the reasons set out in the Court’s March 28 Memorandum and Order and incorporated by
reference herein, Plaintiff’s motion will be denied.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration  is
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 7th day of May, 2014.
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