Dryden v. Barefield

Filing 45

ORDER that 35 Motion to Reconsider is DENIED. Signed by Judge Robert C. Jones on 9/3/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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_____________________________________

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JEFFREY L. DRYDEN,

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Plaintiff,

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vs.
ANDREA E. BAREFIELD,
Defendant.

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2:13-cv-01896-RCJ-PAL
ORDER

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Plaintiff Jeffrey Dryden sued Defendant Andrea Barefield in pro se in this Court for

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various constitutional violations. In granting Plaintiff’s motion to proceed in forma pauperis, the

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Magistrate Judge screened the Complaint and dismissed it with leave to amend. Plaintiff then

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filed two versions of the First Amended Complaint (“FAC”), and the Magistrate Judge screened

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the second, more detailed version. Defendant then filed a motion to dismiss the FAC. Plaintiff

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was due to respond to that motion on January 2, 2015. Meanwhile, the Court accepted and

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adopted the Magistrate Judge’s Report and Recommendation to dismiss all claims in the FAC

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except for one due process claim. The Court then granted a timely stipulation to extend the time

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to respond to the motion to dismiss, giving Plaintiff until January 8, 2015.

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Rather than submit a response to the motion to dismiss on this date, Plaintiff chose to file
a Second Amended Complaint (“SAC”). Given Plaintiff’s SAC, Defendant then moved for

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clarification regarding the procedural posture of the case. The Magistrate Judge struck the SAC

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for Plaintiff’s failure to seek leave to file it and ordered that the FAC remain the “operative

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pleading in this matter.” (Order 2, ECF No. 23). Plaintiff did not object to this ruling or

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otherwise respond to the motion to dismiss. On February 10, 2015, the Court granted

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Defendant’s motion to dismiss, finding that Plaintiff had consented to such by failing to respond

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pursuant to Local Rule 7-2(d).
Plaintiff then asked the Court to alter or amend that judgment under Federal Rule of Civil

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Procedure 59(e). On June 1, 2015, the Court denied Plaintiff’s motion for reconsideration. Now,

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under Federal Rule of Civil Procedure 60(b), Plaintiff moves the Court to reconsider its decision

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to dismiss the case based on six grounds (ECF No. 35).

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I.

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SUA SPONTE SCREENING
Plaintiff argues that the Court’s decision to dismiss his due process claim which had

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survived sua sponte screening under 28 U.S.C. § 1915A constitutes “mistake” under Rule

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60(b)(1) because the same standard governs both screening procedures and motions to dismiss.

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This argument is irrelevant because the motion to dismiss was not based on the merits of

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Plaintiff’s claim—the Court dismissed the claim because Plaintiff consented to the motion by

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failing to respond pursuant to Local Rule 7-2(d). (See Order, ECF No. 26). Furthermore, see

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Ofeldt v. McDaniel, No. 10-00494, 2012 WL 506010, at *1 (D. Nev. Feb. 15, 2012) (stating that

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when a claim survives screening this fact “does not necessarily foreclose subsequent motions

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under the same standard that bring more specific legal issues to a court's attention.”). No mistake

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occurred.

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II.

EXCUSABLE NEGLECT
Plaintiff argues the U.S. Postal Service (“USPS”) failed to deliver to him a copy of the

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order striking the SAC and, thus, his neglect in responding to the order dismissing his case was

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excusable under Rule 60(b)(1). Four factors provide a framework for determining whether

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“excusable neglect” occurred: “(1) the danger of prejudice to the opposing party; (2) the length

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of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4)

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whether the movant acted in good faith.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24

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(9th Cir. 2000).

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Plaintiff argues he could not file an objection to the motion to dismiss because he never

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received notice the Court had stricken the SAC. According to Plaintiff, USPS had mishandled

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various pieces of mail, including notice of the stricken SAC. While this may be true, Plaintiff

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admits he checked his mail only once on January 22, 2015 and once on February 17, 2015. (See

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Pl.’s Decl., Ex. C, ECF No. 36). The SAC was stricken on January 28; thus, Plaintiff would not

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have received notice by January 22. In addition, even if the notice had not reached his mailbox

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by February 17, Plaintiff received a copy of the order approving Defendant’s motion to dismiss,

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which also indicated the Court had stricken the SAC. (Mot. for Relief from J., 12, ECF No. 35).

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After receiving notice on February 17, Plaintiff took no steps to correct his delay or alert

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the Court concerning his postal problems until this Motion filed on June 26, 2015. He also failed

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to mention the problems in his first motion to reconsider filed on March 10, 2015. Thus, even

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presuming Plaintiff made this motion in good faith, the length of delay is not excusable. Nearly

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eight months have passed since Plaintiff’s response to the motion to dismiss was due. Plaintiff

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has presented no persuasive argument to show his neglect in responding to the motion to dismiss

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was excusable.

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III.

STANDARDS OF REVIEW

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Plaintiff argues the Court made a “mistake” under Rule 60(b)(1) by using the incorrect

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standard of review while screening his original and amended complaints. First, Plaintiff argues

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the Court erred by ruling his pleading of “custodial interrogation” under Miranda to be merely a

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“formulaic recitation” as described in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, as

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the Magistrate Judge accurately explained, Plaintiff simply alleged that a “police detective then

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conducted a custodial interrogation.” (Second Am. Compl., 5, ¶ 28, ECF No. 5). Plaintiff

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provided no facts to support his assertion that he was in custody or deprived of his freedom. His

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allegation was a legal conclusion—a “‘naked assertion[]’ devoid of ‘further factual

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enhancement.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557

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(2007)). In other words, nothing in the claim “allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Id.

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Second, Plaintiff argues that during the Magistrate Judge’s first screening the Court failed

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to construe Plaintiff’s allegations in a light favorable to him. According to Plaintiff, he alleged

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that Defendant promulgated the rules and regulations in question here, contrary to the Court’s

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assertion that Plaintiff “does not allege, nor is it plausible to believe, that Barefield . . .

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promulgated these rules and regulations.” (Order 4, 7, ECF No. 2). Plaintiff misses the point.

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Even while construing Plaintiff’s allegation in a light favorable to him, the Court concluded that

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his allegation was “speculative” and that “Barefield is not the proper party to sue for the alleged

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unconstitutionality of these Code provisions.” Id. In other words, Plaintiff’s allegation was so far

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off the mark it failed to state a claim upon which relief can be granted.

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Third, Plaintiff argues the Court erred by dismissing his equal protection claim. He

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alleged that Defendant acted as she did because Plaintiff “is or was a citizen of the State of

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California who had recently moved to Las Vegas for the purpose of attending the University of

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Nevada Las Vegas.” (Compl., 10, ¶ 56, ECF No. 3). As the Magistrate Judge properly explained,

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Plaintiff did not allege he belonged to any protected class, “nor has he asserted that he was

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intentionally treated differently from others similarly situated (the so-called ‘class of one’ equal

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protection claim).” (Order 4, 6–7, ECF No. 2). Plaintiff failed to state an adequate equal

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protection claim.
The Court committed no “mistake” under Rule 60(b)(1).

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IV.

RULE 15
Plaintiff argues the Court made a “mistake” under Rule 60(b)(1) by using an outdated

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version of Rule 15(a)(1)(A) to strike his SAC. A Rule 60(b) motion following a motion for

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reconsideration “are inappropriate vehicles to reargue an issue previously addressed by the court

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when the motion merely advances new arguments, or supporting facts which were available at

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the time of the original motion.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.

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2000). In contrast, “a motion for reconsideration is appropriate where the court has

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misapprehended the facts, a party’s position, or the controlling law.” Id. The Court thoroughly

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addressed Plaintiff’s argument in a prior order (See Order, ECF No. 34). Plaintiff presents no

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new arguments or supporting facts to persuade the Court it misapprehended the facts, a party’s

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position, or the controlling law. The Court committed no mistake on these grounds.

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V.

MISCONDUCT

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Plaintiff alleges that Defendant committed “misconduct” under Rule 60(b)(3) by filing a

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“deluge of paperwork caused by her frivolous motions.” (Mot. for Relief from J., 23). He argues

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Defendant used a “completely illogical argument,” “snuck her versions of her ‘facts’ before the

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Court under the guise of a motion for summary judgment,” and “threw everything, including the

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kitchen sink, at both the plaintiff and this court.” Id. at 20–22.
Under Rule 60(b)(3), a court may set aside a judgment if a party engaged in “fraud . . .,

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misrepresentation, or misconduct.” Specifically, “the moving party must prove by clear and

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convincing evidence that . . . the conduct complained of prevented the losing party from fully

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and fairly presenting the defense.” De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880

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(9th Cir. 2000). This Rule “‘is aimed at judgments which were unfairly obtained, not at those

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which are factually incorrect.’” Id. (quoting In re M/V Peacock, 809 F.2d 1403, 1405 (9th Cir.

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1987)). Generally, Rule 60(b) is “available ‘only to prevent grave miscarriages of justice.’”

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United States v. Chapman, 642 F.3d 1236, 1240 (9th Cir. 2011) (quoting United States v.

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Beggerly, 524 U.S. 38, 47 (1998)).
Plaintiff has not shown by clear and convincing evidence that Defendant engaged in any

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misconduct. At best, his allegations are speculative and present no clear basis in fact. Further,

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even presuming Defendant presented illogical arguments, served Plaintiff with numerous

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motions (related to separate cases), or attempted to “sneak” facts into the case, this conduct

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would not have prevented Plaintiff from fully and fairly presenting his case, and it would not rise

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to the level of a grave miscarriage of justice. Defendant did not engage in misconduct under Rule

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60(b)(3).

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VI.

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ANY OTHER REASON
Plaintiff argues under Rule 60(b)(6) (“any other reason that justifies relief”) that the

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Court should reopen the case because USPS failed to deliver his mail, and also because he could

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not have responded to the motions Defendant filed due to his ill health and broken wrists.

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Under Rule 60(b)(6), a party must request relief “within a reasonable time,” and relief “is

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available only under extreme circumstances. . . . ‘In order to bring himself within the limited area

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of Rule 60(b)(6) a petitioner is required to establish the existence of extraordinary circumstances

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which prevented or rendered him unable to prosecute an appeal.’” Twentieth Century-Fox Film

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Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981) (quoting Martella v. Marine Cooks &

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Stewards Union, Seafarers Int. Union, 448 F.2d 729, 730 (9th Cir. 1971)) (internal citations

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omitted).
Plaintiff requests relief from the motion to dismiss based on his difficulty receiving mail

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and his “ill health and broken wrists.” (Mot. for Relief from J., 23). The Court already directly

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addressed the issue of mail delivery above. While Plaintiff’s health situation is likely

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challenging, the Court cannot find that it created extreme circumstances. Plaintiff argues his

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health “prevented him from coping with the workload” Defendant created, id.; however,

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Plaintiff’s circumstances did not prevent him from filing the SAC instead of a response to the

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motion to dismiss, and he successfully submitted multiple other motions and filings in this case.

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Thus, whatever challenges Plaintiff has faced, they clearly have not created extreme

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circumstances impeding his ability to represent himself in this case. Plaintiff does not merit relief

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under Rule 60(b)(6).
Plaintiff has presented no grounds for the Court to reconsider its order dismissing the

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case.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 35) is DENIED.

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IT IS SO ORDERED.

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Dated this 3rd day of September,
Dated this 27th day of August, 2015.2015.
______________________
ROBERT C. JONES

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