Granado v. LNU et al
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 53 Motion for Reconsideration; and denying 54 Motion to Extend the Time Limits for Appeal. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AUGUSTIN F. GRANADO, Jr.¸
DAVID OTERO, and ERIC R. FIERRO,
Civ. No. 16-859 KG/SCY
FNU LNU, Wardens, Lea County Correctional
Facility, Otero County Prison Facility, Santa
Fe P.N.M. South, et al.,
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff Augustin Granado’s Motions to Extend the Time Limits for
Appeal and for Reconsideration (“Motions”), filed June 19, 2017. (Docs. 53 and 54). Plaintiff
seeks relief from the Court’s February 2, 2017, decision dismissing his pro se civil rights
complaint. (Docs. 46 and 47). Plaintiff made the same request on May 5, 2017, which was
denied. (Docs. 51 and 52). Having considered the Motions, applicable law, and Plaintiff’s new
arguments, the Court will again deny all requested relief.
Plaintiff filed a civil rights complaint seeking damages and release from prison for “[a]ll
actions over a period of 18+ years of incarceration.” (Doc. 1). On October 25, 2016, the Court
dismissed the “kitchen-sink” complaint but granted leave to amend. (Doc. 21). The amended
complaint was similarly deficient. It contained over a hundred claims against various prison
officials and state agencies. (Doc. 44). By a memorandum opinion and judgment entered
February 2, 2017, (together, “Judgment”) the Court dismissed the amended complaint pursuant to
28 U.S.C. § 1915(e)(2). (Docs. 46 and 47).
Three months later, Plaintiff filed the first motion seeking reconsideration and/or an
extension of the time to appeal the Judgment. (Doc. 51). He argued the Court should have
considered evidence and appointed counsel before dismissing his complaint. The Court declined
to reconsider under Fed. R. Civ. P. 60(b) and determined it lacked the authority to extend the
appeal period. (Doc. 52). Plaintiff filed the instant Motions about a week after that ruling. He
seeks essentially the same relief but emphasizes his mental illness and lack of legal knowledge.
1. Extending the Appeal Period
A motion to extend the appeal period generally must be filed within 60 days after entry of
the judgment. Fed. R. App. P. 4(a)(1)(A); Fed. R. App. P. (4)(a)(5)(A); 28 U.S.C. §§ 2107(a),
(c). If the motion is untimely, “the district court lacks authority to grant any relief from the filing
deadline.” Coots v. Allbaugh, 656 Fed. App’x 385, 386 (10th Cir. 2016) (unpublished). See also
Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255, 1256 (10th Cir. 1990)
(district courts are “expressly prohibit[ed] [from granting] extensions of time for filing a notice of
appeal beyond the time limits set out in [Appellate Rule 4]”).
As the Court previously explained, the deadline to move for an extension of the appeal
period was April 5, 2017. Plaintiff now argues he could not meet that deadline because his
mental health issues prevent him from concentrating for more than thirty minutes, he lacks legal
knowledge, and he has “repeatedly be[en] moved and [been] lost in the cog’s of the N.M.D.O.C’s
machinations (sic).” (Doc. 54, p. 10). However, Fed. R. App. P. (4)(a)(6) and 28 U.S.C. 2107(c)
expressly provide that the 60-day period may only be extended if the movant did not receive
notice of the judgment within 21 days of its entry. Although Plaintiff may have transferred
prisons at some point this year, he does not contend he lacked timely notice of the Judgment,
which was mailed to his address of record on the date of entry. The Motion to Extend the Time
Limits for Appeal therefore must be denied as untimely.
2. Fed. R. Civ. P. 60(b)
Plaintiff also renews his request for relief from the Judgment under Fed. R. Civ. P. 60(b).
Such relief is exceptional and generally requires a showing of mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, or fraud. See Fed. R. Civ. P. 60(b)(l)-(6); Van
Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). The instant Motion amplifies
Plaintiff’s previous argument that the Court inappropriately screened his complaint without
considering evidence or investigating his allegations. He asserts, for example, that the
Department of Corrections has “100’s if not 1,000’s of documents” pertaining to his mental
health. (Doc. 54, p. 3). As the Court already explained, however, there is no indication such
evidence is newly discovered. More importantly, there is no requirement that the Court consider
evidence when screening a prisoner’s civil rights complaint. See 28 U.S.C. § 1915; 42 U.S.C. §
Plaintiff also argues his three prior requests1 for counsel should have been granted due to
his mental illness and lack of legal knowledge. The Court disagrees. There is no constitutional
right to counsel in civil cases, and in fact “[c]ourts are not authorized to appoint counsel in § 1983
cases.” Rachel v. Troutt, 820 F.3d 390, 396 (10th Cir. 2016). “[I]nstead, courts can only
‘request’ an attorney to take the case.” Id. This decision is discretionary and will only be
reversed in “extreme cases where the lack of counsel results in fundamental unfairness.” See also
Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The fact that Plaintiff
is mentally ill and lacks legal knowledge - which is unfortunately true in many pro se prisoner
See Docs. 12, 24, and 51.
cases - does persuade the Court that counsel is necessary.
Finally, the Motions appear to raise substantive claims based on missing property,
inadequate medical treatment, excessive force, harassment, and violations of religious freedom.
(Doc. 53, p. 7, 8, and 12; Doc. 54, p. 4, 6, and 7). A party may not use a post-judgment motion to
rehash issues previously addressed or “advanc[e] new arguments … which were otherwise
available for presentation when the original” complaint was considered. Van Skiver, 952 F.2d at
1243 (citing Fed. R. Civ. P. 60(b)). Therefore the Court will not modify the Judgment based on
Plaintiff’s new or renewed constitutional claims.
IT IS ORDERED that Plaintiff’s Motions to Extend the Time Limits for Appeal (Doc. 54)
and for Reconsideration (Doc. 53) are denied.
UNITED STATES DISTRICT JUDGE
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