Talley v. Starkey

Filing 15

///ORDER denying 14 Talley's Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Louis Talley
v.

Case No. 17-cv-85-SM
Opinion No. 2018 DNH 126

Officer J. Starkey

O R D E R

Louis Talley, a federal prisoner appearing pro se, filed an
action against Corrections Officer J. Starkey (CO Starkey),
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971).

Specifically, he claimed

that CO Starkey violated his constitutional right to equal
protection when CO Starkey: (1) “angrily snatched” a food tray
from him and almost slammed his hand into the slot in the door
of his cell; (2) used a racial slur to address him and his
cellmate (both Talley and his cellmate are African-American);
and (3) imitated a monkey by making both sounds and gestures.
The magistrate judge recommended dismissal of Talley’s
complaint, for failure to state claim upon which relief can be
granted.

In an order dated September 5, 2017, the court noted

plaintiff’s objection to the magistrate judge’s report and
recommendation, approved the report and recommendation,
dismissed plaintiff’s complaint in its entirety, and directed
the Clerk of Court to close the case.

See Order (doc. no. 10)

1.

Two days later, the Clerk of Court entered judgment in

accordance with the court’s order, and closed the case.

See

doc. no. 11.
Now before the court is Talley’s motion for summary
judgment.

Given that judgment has already been entered in favor

of defendant, plaintiff’s motion for summary judgment is
untimely.

In deference to Talley’s pro se status, the court

will construe his pleading as a motion for relief from judgment,
pursuant to Rule 60 of the Federal Rules of Civil Procedure.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (explaining that
pro se pleadings are to be construed liberally).

Even so,

Talley is not entitled to the relief he seeks, which is either
summary judgment in his favor or the opportunity to take his
claim to trial.
Under Rule 60, a district court may relieve a party from
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 (whether previously called intrinsic or
extrinsic), misrepresentation, or 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

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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).
Here, Talley’s motion says nothing that establishes any of
the six grounds for relief described in Rule 60(b)(1)-(5), so
the court considers whether Talley’s motion provides the court
with any reason to vacate the judgment of dismissal in this case
under Rule 60(b)(6).

Relief under Rule 60(b) is extraordinary,

so that a party seeking relief “must establish, at the very
least, that his motion is timely; that exceptional circumstances
exist, favoring extraordinary relief; that if the judgment is
set aside, he has the right stuff to mount a potentially
meritorious claim or defense; and that no unfair prejudice will
accrue to the opposing parties should the motion be granted.”
Rivera–Velázquez v. Hartford Steam Boiler Insp. & Ins. Co., 750
F.3d 1, 3–4 (1st Cir. 2014).

Talley’s motion is timely filed,

and there are no opposing parties in this case, so this court
considers whether, in his motion, Talley has demonstrated that
he has a potentially meritorious claim in this case.

See id.

The crux of Talley’s argument is that the magistrate judge
and this court overlooked an exhibit that he attached to both
his complaint and his objection to the magistrate judge’s report
and recommendation.

In Talley’s view, that exhibit establishes

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the factual basis for the equal-protection claim asserted in his
complaint.
The exhibit at issue is a response he received to a Central
Office Administrative Remedy Appeal he submitted to the Federal
Bureau of Prisons (“BOP”) concerning the same misconduct, by CO
Starkey, upon which this action is based.

In the BOP’s

response, Ian Connors, Administrator of National Inmate Appeals,
indicated that his office “concur[red] with the manner in which
the Warden and Regional Director [had] addressed [Talley’s]
concerns.”

Doc. no. 7, at 2 of 5.

He continued:

Staff conduct is governed by Program Statement
3420.11, Standards of Employee Conduct, and the Bureau
of Prisons takes seriously any allegation of staff
misconduct, such as those you raised in this remedy
cycle. We look into matters which may constitute
inappropriate conduct and refer them to another
component of the Bureau of Prisons for appropriate
action. The matter has been forwarded to the
appropriate Bureau component for further review.
Id.

While the passage quoted above indicates that the BOP

intended to further investigate Talley’s claim, it is not, as
Talley suggests, an admission by the BOP that CO Starkey
committed the equal-protection violation on which Talley bases
his Bivens claim.
In his motion, Talley does nothing more than restate the
arguments he made in his objection to the magistrate judge’s
report and recommendation, arguments that this court has already
considered and rejected.

Talley has failed to demonstrate,

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therefore, that if the court were to vacate the judgment in this
case, “he has the right stuff to mount a potentially meritorious
claim.”

Rivera-Velázquez, 750 F.3d at 3.

Because Talley has

failed to provide grounds to grant him relief from judgment
under Rule 60(b)(6), his motion (Doc. No. 14) is denied.

SO ORDERED.
__________________________
Steven J. McAuliffe
United States District Judge
June 19, 2018
cc:

Louis Talley, pro se

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