Turner v. High Desert State Prison et al

Filing 213

ORDER. IT IS HEREBY ORDERED that Turner's motions for relief from the judgment and dismissal order 194 , 198 , and 205 are GRANTED in part: the judgment 190 is VACATED, the dismissal order 189 is AMENDED to provide that the case is dis missed WITHOUT PREJUDICE to Turners right to reassert his claims in another case, and this case is closed. IT IS FURTHER ORDERED that Turner's motions for free copies of documents and a list from the Clerk of Court 207 and 208 are DENIE D.IT IS FURTHER ORDERED that Turner's motion to strike the defendants' responses 210 is DENIED. granting in part and denying in part 194 Motion to Reopen Case.; granting in part and denying in part 198 Motion to Reopen Case.; granting in part and denying in part 205 Motion.; denying 207 Motion.; denying 208 Motion.; denying 210 Motion to Strike. Signed by Judge Jennifer A. Dorsey on 8/5/16. (Copies have been distributed pursuant to the NEF - TR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

John Turner,

5

Plaintiff

6

v.

7

Nevada Department of Corrections, et al.,

8

Defendants

2:13-cv-01740-JAD-VCF
Order Granting in Part Motions for Relief
Under FRCP 60(b); Vacating Judgment;
Amending Dismissal Order; Denying
Motions for Free Copies of Court Records;
and Denying Motion to Strike Responses
[ECF Nos. 194, 198, 205, 207, 208, 210]

9
10
11

As a pro se plaintiff who had been granted in forma pauperis status, John Turner sued

12

High Desert State Prison, the Nevada Department of Corrections (NDOC), the Nevada Inmate

13

Bank System, and the State of Nevada under 42 U.S.C. § 1983 for civil-rights violations

14

stemming from the alleged theft from and overcharging of Turner’s inmate trust account while he

15

was incarcerated.1 After two months of having documents that had been mailed to Turner

16

returned to this court as undeliverable, I dismissed this case with prejudice under LSR 2-2 for his

17

failure to keep the court apprised of his current address,2 and the Clerk of Court entered judgment

18

in favor of the defendants and against Turner.3

19

Five months later, Turner filed the first of three motions seeking relief from the judgment

20

under FRCP 60(b).4 Turner argues that the dismissal order and judgment are the product of

21

mistake (he gave the wrong street name in one of his change-of-address forms), excusable

22

neglect (he was homeless when the judgment was entered), and fraud (he had no money for rent

23

because funds were again wrongly withdrawn from his prison trust account before he was

24
25
1

ECF No. 15.

27

2

ECF No. 189.

28

3

ECF No. 190.

4

ECF Nos. 194, 198, 205.

26

1

released).5 Turner further argues that relief is warranted because the withdrawal of funds from

2

his prison trust account constitutes newly discovered evidence, the judgment is void because it

3

was entered when he was homeless, and that his homelessness itself is a reason to relieve him

4

from the judgment.6 Turner also moves for copies of the documents that he missed after he failed

5

to update his address with the court,7 a list of the dates on which he updated his address in this

6

case,8 and to strike the defendants’ responses to his FRCP 60(b) motions.9

7

I find that there was no mistake by Turner, there is no evidence that he could not have

8

discovered in time to move for relief under FRCP 59(b) or of any fraud or misconduct by the

9

defendants, the judgment is not void, and Turner’s four-month delay in seeking to set aside the

10

judgment and dismissal order on the grounds of mistake, inadvertence, surprise, or excusable

11

neglect was not reasonable. But I do find that the reason why Turner failed to update his address

12

with the court—he was homeless for a three month period—combined with his history of

13

otherwise updating his address in this case justifies relieving him from the with-prejudice effect

14

of the dismissal order. I therefore grant Turner’s motions for relief under FRCP 60(b) in

15

part: I vacate the judgment and amend the dismissal order to provide that this case is

16

dismissed without prejudice and closed. This leaves him with the ability to pursue his

17

dismissed claims in a new lawsuit, but results in this case remaining closed. Turner is not

18

entitled to free copies of court documents or a list of what he has filed in this case, so I deny his

19

motions for that relief. Finally, I deny his motion to strike or disregard the defendants’ response

20

briefs because he has not articulated a valid basis for me to do so.

21
22
23

5

ECF Nos. 194, 198, 205.

6

ECF Nos. 198, 205.

7

ECF No. 207.

27

8

ECF No. 208.

28

9

ECF No. 210.

24
25
26

2

1

Background

2

Turner filed this lawsuit while he was incarcerated at the High Desert State Prison

3

(HDSP).10 He provided notice to the court when his address in that prison changed to a different

4

cell block,11 when he was moved from the HDSP to the Ely State Prison12 and then back to the

5

HDSP,13 and again after he was released from prison in July 2015.14 But mail that the court sent

6

to Turner in October and November 2015 was returned as undeliverable.15 So, on November 17,

7

2015, I dismissed with prejudice his case under LSR 2-2 for his failure to keep the court apprised

8

of his current address.16 Over a month later, Turner filed notice that his address had changed to

9

3900 Cambridge Street #106 Las Vegas, NV 89119.17 Four more months passed before Turner

10

filed the first of three motions seeking to set aside the dismissal order and judgment that had

11

been entered against him.18 Turner provided notice that same day that his address had changed to

12

the Clark County Detention Center.19

13
14
15
16
17
10

ECF No. 15 at ¶ 1.

11

ECF No. 45.

20

12

ECF No. 119.

21

13

ECF No. 169.

22

14

See ECF Nos. 177, 180.

15

ECF Nos. 183, 184, 185, 186.

16

ECF No. 189.

17

ECF No. 192.

27

18

ECF No. 194.

28

19

ECF No. 193.

18
19

23
24
25
26

3

1

Discussion

2
3

A.

Turner is entitled to be relieved from the judgment and the with-prejudice effect of
the dismissal, but not the dismissal itself.

4

The court may relieve a party from a final judgment or order for limited reasons under

5

FRCP 60(b): (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

6

evidence that, with reasonable diligence, could not have been discovered in time to move for a

7

new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic),

8

misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the

9

judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has

10

been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other

11

reason that justifies relief. A motion for relief under FRCP 60(b) “must be made within a

12

reasonable time—and for reasons (1), (2), and (3) no more than one year after the entry of

13

judgment or order or the date of the proceeding.”20 Turner argues that grounds exist to

14

completely set aside the judgment and dismissal order under all but FRCP 60(b)(5).

15

1.

16

Turner argues that his case was dismissed and judgment entered against him because he

The judgment is not the product of a mistake.

17

mistakenly provided the wrong street address (Maryland Parkway instead of Cambridge Street) to

18

the court in his change-of-address notice dated December 21, 2015.21 There was no mistake: that

19

notice provided exactly what Turner contends was his “actual” mailing address at that

20

time—3900 Cambridge Street #106 Las Vegas, NV 89119.22 And even if the street name had

21

been wrong in that notice, this error would not be grounds for relief from the judgment because

22
23
24
25
20

FED. R. CIV. PROC. 60(c)(1).

27

21

See ECF No. 194.

28

22

Compare ECF No. 194 at 1 with ECF No. 192.

26

4

1

Turner filed that notice a month after I had already dismissed his case for failing to keep his

2

address current with the court.23

3
2.
4

Turner has not identified any evidence or fraud that could not have been
discovered in time for him to move for relief under FRCP 59(b).

5

To obtain relief under FRCP 60(b)(2), Turner must establish that there is “newly

6

discovered evidence that, with reasonable diligence, could not have been discovered in time to

7

move for a new trial under Rule 59(b).” Similarly, for relief under FRCP 60(b)(3), Turner must

8

prove fraud “by clear and convincing evidence” and that it was not “discoverable by due

9

diligence before or during the proceeding, and be materially related to the submitted issue.”24

10

Reconsideration is not justified when the newly discovered evidence or fraud reasonably could

11

have been discovered prior to the court’s initial ruling.25

12

Turner argues that wrongful withdrawals from his prison trust account before his release

13

from the NDOC’s custody is newly discovered evidence or fraud that justifies relieving him from

14

the dismissal and judgment. But he does not state when he became aware that the funds had been

15

withdrawn from his prison trust account nor does he identify the amount of any deduction or the

16

date that the deductions were made. Turner has not, therefore, established that grounds for relief

17

under FRCP 60(b)(2) or (3) exist.

18

3.

19

Turner next argues that the judgment is void because it was entered when he was

The judgment is not void.

20

homeless.26 “A final judgment is ‘void’ for purposes of Rule 60(b)(4) only if the court that

21

considered it lacked jurisdiction, either as to the subject matter of the dispute or over the parties

22
23

23

24

Compare ECF No. 189 (order dismissing case) with ECF No. 192 (notice of change of address
to 3900 Cambridge Street #106 Las Vegas, NV 89119).

25

24

26

Pacific & Arctic Ry. and Nav. Co. v. United Transp. Union, 952 F.2d 1144, 1148 (9th Cir.
1991).

27

25

See FED. R. CIV. P. 60(b)(2), (3).

28

26

ECF No. 205.
5

1

to be bound, or acted in a manner inconsistent with due process of law.”27 Turner does not argue

2

that the court lacked jurisdiction, so I construe his voidness argument as a due-process challenge,

3

i.e., that he did not receive notice before the dismissal and judgment.

4

The Clerk of Court made several efforts to serve Turner with copies of orders that had

5

been entered in this case at the last address that he had provided, but that mail was all returned to

6

the court as undeliverable.28 The Clerk of Court put each item of mail that was returned as

7

undeliverable on the docket.29 And after more than thirty days had elapsed without an updated

8

address for Turner, I dismissed his case under this court’s local rule30 that provides that a pro se

9

plaintiff’s case can be dismissed with prejudice if he fails to immediately inform the court and

10

opposing parties in writing of any change of address.31 One month after the dismissal order and

11

judgment had been entered, Turner filed notice in this closed case that his address had changed.32

12

And another four months passed before Turner (1) informed the court that he had been homeless

13

for the period of time overlapping the returned mail and dismissal and (2) moved for relief from

14

the judgment.33

15
16

The Ninth Circuit examined a similar situation in Carey v. King, which concerned an
appeal by a pro se plaintiff from the dismissal of his case under the Western District of

17
18
19

27

U.S. v. Berke, 170 F.3d 882, 883 (9th Cir. 1999) (citing In re Ctr. Wholesale, Inc., 759 F.2d
1440, 1448 (9th Cir. 1985)).

28

See ECF Nos. 183, 184, 185, 186.

21

29

ECF Nos. 183, 184, 185, 186.

22

30

LSR 2-2.

23

31

20

24

ECF No. 189. Judgment was entered against Turner on the same day. ECF No. 190. A copy
of the dismissal order was mailed to Turner’s last-known address but that, too, was returned to
the court as undeliverable. ECF No. 191.

25
32

26
27
28

ECF No. 192.

33

Compare ECF No. 192 with ECF No. 194. Turner’s first motion for relief from the judgment
was joined by a notice that his address had changed to the Clark County Detention Center. ECF
No. 193.
6

1

Washington’s local rule that requires pro se plaintiffs to keep the court apprised of their address

2

at all times.34 The Ninth Circuit rejected Carey’s argument that the district court had abused its

3

discretion because it did not provide him prior notice. The court concluded that “the local rule

4

itself provided notice of the action taken” and that “any additional notice in the unique

5

circumstances presented by a pro se litigant’s failure to advise the district court of a change in his

6

address is unworkable” and would have been “a futile gesture” given that “mailing to Carey was

7

returned as undeliverable.”35

8
9

Like in Carey, this court’s local rule provided Turner with notice that the burden was on
him to keep the court informed of any change in his address and, because Turner had failed to do

10

so, any further notice prior to the dismissal would have been futile because mail to Turner was

11

being returned to the court as undeliverable. The many address-change notifications that Turner

12

filed in this case indicate that he was aware of this court’s local rule governing the same.

13

Therefore, I do not find that the dismissal of Turner’s case was inconsistent with due process.

14
15

4.

Turner’s four-month delay in seeking relief under FRCP 60(b)(1) was not
reasonable.

16

Turner also argues that his homelessness is grounds for relief because it renders the

17

dismissal order and judgment the product of surprise, excusable, neglect, or inadvertence. After

18

his case had been dismissed and judgment had been entered against him, Turner filed notice that

19

his address had changed.36 Another four months passed before Turner moved to be relieved from

20

the judgment and dismissal order.37 Turner’s four-month delay leads me to conclude that,

21

although he dispatched a change-of-address notice to the court in December 2015, it was not

22
23
24
34

Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988).

35

Id. at 1141.

27

36

ECF No. 192.

28

37

ECF No. 194.

25
26

7

1

until April 2016—after he had been re-arrested and jailed38—that he bothered to discover what

2

had transpired in his case. While I am sympathetic that Turner is a pro se plaintiff with pauper

3

status whose mail was returned to the court because he was homeless for three months, that still

4

leaves four months where he had shelter but ignored this case. Turner offers no explanation for

5

why he did not move for relief during that time. Litigation is not a light switch that a party can

6

turn off and on at his convenience. I therefore find that Turner did not timely move for relief

7

under FRCP 60(b)(1).

8

5.

9

Still, I find that some relief is warranted under FRCP 60(b)(6). The Ninth Circuit

10

instructed in Carey that, when deciding whether to dismiss an action for the plaintiff’s failure to

11

prosecute, district courts are required to weigh: “‘(1) the public’s interest in expeditious

12

resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

13

defendants; (4) the public policy favoring disposition of cases on their merits[;] and (5) the

14

availability of less drastic sanctions.’”39 In weighing these factors, I continue to find that the

15

dismissal of Turner’s case was—and remains—warranted, but that the less drastic sanction of a

16

without-prejudice dismissal is more appropriate in light of Turner’s recent disclosures.

17

Relief from the with-prejudice effect of the dismissal is warranted.

Because the court and the defendants were not able to communicate with Turner or to

18

provide him with copies of orders (including an order opening and scheduling discovery) for two

19

months, I previously found and still do find that the first three factors weigh in favor of

20

dismissing Turner’s case. But Turner has since disclosed that the reason why he had failed to

21

update his address is that he was homeless from approximately September 30 to December 21,

22

2015. The timing of Turner’s homelessness, coupled with his history of otherwise keeping the

23

court informed of any change in his address, leads me to conclude that while the final two Carey

24
25
38

26
27
28

See ECF No. 206 at 2:15–16 (providing that Turner was re-arrested and booked into the Clark
County Detention Center on March 30, 2016).
39

Carey, 856 F.2d at 1440–41 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986)).
8

1

factors still weigh in favor of dismissal, it should be one without prejudice. I therefore grant

2

Turner’s motions for relief under FRCP 60(b)(6) in part: I vacate the judgment and amend the

3

dismissal order to provide that it is without prejudice to Turner’s right to reassert his claims in a

4

new case. Any further filings in this closed case will be summarily denied.

5

B.

6

Turner is not entitled to free copies of court records.
Turner moves for copies of the documents that were returned to the court as undeliverable

7

while he was homeless (ECF Nos. 182, 181, 189, 190),40 a copy of the docket sheet,41 and a list

8

of the dates on which he filed a notice of change of address with this court.42 I deny Turner’s

9

request for a copy of the dismissal order (ECF No. 189) and judgment (ECF No. 190) as moot in

10

light of my decision to amend the dismissal order and to vacate the judgment. I deny Turner’s

11

request that the Clerk of Court prepare for him a list of the dates on which he filed a change-of-

12

address notice because that is not a function that the Clerk (or the court) performs. And I deny

13

Turner’s request for copies of the interlocutory orders that the court twice attempted to serve on

14

him (ECF Nos. 182, 181), and a copy of the docket sheet, because he has not established why he

15

requires them.43 According to the court’s schedule of fees—effective January 1, 2015—Turner

16

may request uncertified copies at a copying rate of $ 0.10 per page if produced from an electronic

17

format and at the rate of $.50 per page if produced in a physical format.

18

C.

19
20

Turner offers no reasonable basis for me to disregard the defendants’ responses.
Finally, Turner moves me to strike the defendants’ responses to Turner’s various post-

dismissal motions because he disagrees with the defendants’ arguments and disputes their factual

21
22

40

ECF No. 207.

23

41

Id.

24

42

ECF No. 208.

25
43

26
27
28

The courts in this district have long held that an in forma pauperis plaintiff is “not entitled to
receive free copies of documents from the court without the plaintiff demonstrating a specific
showing of need for the copies requested.” Allen v. Clark Cty. Detention Ctr., 2011 WL 886343,
at * 1 (D. Nev. Mar. 11, 2011) (citing Spisak v. St. of Nev., 2007 WL 1612293 (D. Nev. June 1,
2007)).
9

1

recitations.44 Neither is a proper basis for me to strike45 or disregard the defendants’ response

2

briefs. And the appropriate vehicle for Turner’s arguments are in reply in support of his motions.

3

I therefore deny Turner’s motion to strike.

4

Conclusion

5

Accordingly, IT IS HEREBY ORDERED that Turner’s motions for relief from the

6

judgment and dismissal order [ECF Nos. 194, 198, 205] are GRANTED in part: the

7

judgment [ECF No. 190] is VACATED, the dismissal order [ECF No. 189] is AMENDED to

8

provide that the case is dismissed WITHOUT PREJUDICE to Turner’s right to reassert

9

his claims in another case, and this case is closed. If Turner wishes to pursue his claims, he

10

must file a new lawsuit; no further motions will be considered in this closed case.

11
12

IT IS FURTHER ORDERED that Turner’s motions for free copies of documents and
a list from the Clerk of Court [ECF Nos. 207, 208] are DENIED.

13
14

IT IS FURTHER ORDERED that Turner’s motion to strike the defendants’ responses
[ECF No. 210] is DENIED.

15

DATED: August 5, 2016

16

_______________________________
____________________
_
__ ______ __ _
Jennifer A. Dorsey
nnife A
fer
fe
fe
United States District Judge
ited Stat s District Judge
d ta
tate
ict u

17
18
19
20
21
22
23
24
25

44

26

45

27
28

ECF No. 210.

Motions to strike are governed by FRCP 12(f), which pertains only to an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter” that is contained in a “pleading.”
The defendants’ responses are not pleadings, see FED. R. CIV. P. 7(a), nor do they contain any
material that merits striking under the rule.
10