Clark v. Parker et al
Memorandum Opinion and Order denying Motion to alter or amend judgment (Related Doc # 7 ). Judge Dan A. Polster(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
DAVID E. CLARK,
J. PARKER, et al.,
CASE NO. 4:10 CV 495
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
Plaintiff filed a “Motion to Alter or Am Judgment” (ECF #7-1) on April 7, 2011, to ask
this Court to reconsider its decision to dism iss this action on July 20, 2010. For the following
reasons, the Motion is denied.
Plaintiff filed this action on March 8, 2010 agai nst Ohio State Penitentiary (“OSP”) Unit
Manager Administrator J. Parker, f ormer OSP Unit Manager Mr. Hill, Acting OSP Institutional
Inspector Ted Jackson, Rules Infraction Board (R Chairman Lieutenant Ritz, RIB Member Ms.
Lugle, OSP Sergeant Tanner, Ohio Department of Rehabilitation and Correction (“ODRC”) Chief
Inspector John Doe, ODRC Assistant Chief Inspector John Doe, OSP Warden David Bobby, and
ODRC Director Ernie Moore allegi g he was unfairly charged with
conduct violations and deprived
of personal property. He asserted claim of retaliation for attempting to redress a grievance, denial
of due process when he was placed in segrega tion and deprived of hi s per sonal property, and
violation of his Eighth Amendment rights by the totality of the events.
Thereafter, the Court issued its Mem
orandum of Opinion Order dism
issing the action on July
20, 2010. (ECF #4.) Specifically, the Court held that the Eleventh Amendment barred the claims
against Warden Bobby and Director Moore who were sued only in their official capacities. His
claims against the OSP Institutional Inspector,the ODRC Chief Inspector and the ODRC Assistant
Chief Inspector were all based on their responses to his grievances which is insufficient to trigger
liability under 42 U.S.C. § 1983. His retaliation claim was construed against Ms. Parker and the
Court held that he failed to reasonably suggest her
conduct was based on an intent to retaliate against
him for filing of grievances ratherthan Plaintiff’s conduct which was the subject of the disciplinary
action. The Court fur ther held that his placem ent in segregation and loss of property did not
represent an atypical and significant hardship sufficient to trigger due process protections and did
not present the type of extreme deprivation that triggered Eighth Amendment protections.
Plaintiff filed a Motion to A lter or Ame nd J udgment pursuant to Federal Rule of Civil
Procedure 59(e) on April 7, 2011, seek relief from the Court’s decision. Specifically, he alleges
his Complaint had m erit. He contends that he clearly stated a claim for ret aliation against Ms.
Parker and claims he fai ls t o see how she could feel threatened by his com ments to her in his
grievance. He fur ther c ontends that this claim should have been construed against all of the
Defendants as he did not specifically state that th claim was against only Ms. Parker. He contends
that the Chief Inspector, the Assistant Chief Inspector and the OSP Institutional Inspector did not
properly investigate his claim in his grievancesand this constitutes personal involvem
he asserts that the actions of the Defendants did ri to the level of an Eighth Am
II. Rule 59(e)
Federal Rule of Civil Procedure 59(e) permits a party to file a Motion to Alter or Amend a
judgment. Fed. R. Civ. P. 59(e). The Sixth Circuit has determined, however, that a court should
grant such a motion only “if there is a clear errorof law, newly discovered evidence, an intervening
change in controlling law, or to
prevent manifest injustice.” Gencorp, Inc. v. Am. Int’l Underwriters
Co., 178 F.3d 804, 834 (6th Cir. 1999)(citations omitted). Consequently, a party cannot utilize a
Rule 59(e) motion to re-litigate issues the Court prevously considered or to “raise argum which
could, and should, have been made before judgment issued.” Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998);
Keeweenaw Bay Indian Cmty. v. United States,
940 F.Supp. 1139, 1141 (W .D. Mich.1996). In addition, a party wishing to alter or am end a
judgment under Rule 59(e) m file his or her Moti within 28 days after the entry of the judgm
III. Time limitations for Motion to Alter or Amend Judgment
Plaintiff initially asserts that his Motion toAlter or Amend Judgment should be considered
timely even though it was filed seven months and sixteen days after judgment was entered in this
case. The Court’s records indicate that a copyof the Memorandum of Opinion and Order was sent
to Plaintiff at OSP on July 20, 2010 by regular US Mail. The prison’s legal mail log indicates that
a package from this Court arrived at the prison on July 21, 2010. ECF #7-1 at 10-13. Plaintiff
signed for it the same day. He claims, however, that this package contained only the Court’s ruling
on his Application to Proceed In Forma Pauperis (ECF #3), and not the Court’s Memorandum of
Opinion and Order (ECF #4) as indicated on the Court’s Notice of Filing.
Plaintiff states that six m
onths passed fromthe time he received the ruling on his Application
to Proceed In Forma Pauperis and he became concerned that he had not received an indication that
his Complaint had either been dism
issed or served. He states he sent letters to the Court on January
26, 2011 and again on February 3, 2011. He claims he received no response from the Court. He
indicates he sent a third inquiry t o the Court at the Cleveland address and received a copy of the
docket. He indicates he sent a request to th Court for a copy of the Mem
orandum of Opinion and
Order. The prison’s legal m log indicates thispackage arrived on March 2, 2011. Plaintiff signed
for the package on March 3, 2011. ECF #7-1 at 12. He then indicates he received a copy of an
Order on March 16, 2011 which was filed in error in case. The prison’s legal m log indicates
this package was received by Plai tiff on March 17, 2011. He argues that the timto file his Motion
to Alter or Amend Judgment should start to runon the date he claim he received the Mem
of Opinion and Order.
A Court is precluded from calculating the timeliness of a Rule 59(e) motion based on any
date other than the date on which the rele ant final order or judgment was entered. Keith v. Bobby,
618 F.3d 594, 597 -599 (6th Cir. 2010). The text of the rule indicates that only the final or der or
judgment that the m otion seeks to alter or am end can serve as the starting point for determ ining
timeliness. Id. District courts do not have eve n the customary discretion given by Rule 6(b) to
enlarge the Rule 59(e) period. Id. at 598-99. This court can find no authority to extend the tim e
period for filing a Rule 59(e) Motion.
Even if this Court could extend time period to the date Plai
ntiff claims he received a copy
of the Mem orandum of Opinion and Order from
the Court, his Rule 59( e) M otion would be
untimely. The prison’s legal mail log shows the package arrived from the District Court on March
2, 2011. He signed for this pa ckage on March 3, 2011, not March 14, 2011 as he suggests in his
Motion. Under his argument, he would have 28 calendar days from the date of receipt to file his
Motion. The Motion would be required to be filed before March 31, 2011, which was a Thursday.
Plaintiff indicates on his Certificate of Service th he placed his Motion in the prison m on April
6, 2011. His Motion at that point would still be untimely, even under his theory.
IV. Rule 60(b)
Where a party's Rule 59 motion is not filed within the mandatory 28-day period, the Court
may consider the motion as one requesting relief from judgment pursuant to Rule 60(b). Feathers
v. Chevron U.S.A., 141 F.3d 264, 268 (6 Cir.1998); see e.g., Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828 (1992). The standard for granting a Rule
60(b) Motion, however, is significantly higher than the standard applicable to a Rule 59 Motion.
A tim ely Rule 59 m otion m ay be granted "for a ny of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of the United States." FED.R.CIV.P. 59(a).
A Rule 60(b) motion, by contrast, may be granted only for certain specified reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in ti me to m ove for a new trial under Rule 59(b); (3)
fraud (whether heretof ore denom inated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgm ent has been satisfied, rele ased, or
discharged, or a prior judgm ent upon which it is based has been
reversed or otherwise vacated, or it is no longer e quitable that the
judgment should have prospective application; or (6) any ot
reason justifying relief from the operation of the judgment.
FED.R.CIV.P. 60(b). Rule 60(b) does not perm parties to relitigate the merits of claims, or to raise
new claims that could have been raised during the litigation of the case or in the initial Complaint.
In re Abdur'Rahman, 392 F.3d 174, 179 (6th Cir. 2004).
Because Plaintiff’s Motion does not invoke any of first fve grounds for relief enum
in the rule, his request for relief is construed under subsection (b)(6), “any other reason justifying
relief” from judgment. This subsection, however is only properly invoked in "unusual and extrem
situations where principles of equity mandate relief." Olle v. Henry & Wright Corp., 910 F.2d 357,
365 (6th Cir.1990). Plaintiff’s Motion does not satisfy this criteria.
It is evident that Plaintif f is simply attempting to relitigate m atters which were already
considered and rejected by this Court. He first argues that his retaliation claim against Ms. Parker
had merit and indicates it should have been construed against all of the Defendants, not just Ms.
Parker. Plaintiff did not associate any of the le gal claims in his Com plaint with any particular
Defendant. His legal claim were contained in the “prelim
inary statement” of his Complaint which
was followed by a narrative of allegations. His first claim was stated as “a conspiracy to violate
Plaintiff’s constitutional rights in retaliation f his attempt to redress his grievances.” (ECF # 1 at
1.) The only allegations in t he narrative portion of his Com plaint which arguably f it within the
language of t his claim pertained to Ms. Parker’s action of bringing disciplinary charges against
Plaintiff for language in one of his grievances which she claimed was threatening. Even then, this
claim did not satisfy all the elem ents of a cause of action for retaliation. Although Plaintiff now
asserts that the Court’s decision was incorrect, it is not a proper basis for relief under Rule 60(b).
To the extent Plaintiff intended for this claim to be asserted against other Defendants, his
pleading lacked both factual allegations and legal authority to draw this inference. Although pro
se pleadings are to be held to a less str ingent standard than formal pleadings drafted by lawyers,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972);Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991),
“[o]ur duty to be ‘less stringe nt’ with pro se complaints does not require us to conjure up unpled
allegations” or to create a claimfor the Plaintiff. McDonald v. Hall, 610 F.2d 16, 19 (1st Cir.1979)
(citation omitted); Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975). W
Plaintiff may wish in hindsight th he had set forth these claim more specifically in his Com
a Rule 60(b) Motion does not provide him with an opportunity to raise claim s which could have
been asserted in his original pleading. In re Abdur'Rahman, 392 F.3d at 179.
Plaintiff next contends that the Court incorrec dismissed his claims against the grievance
officers, and his Eighth Amendment claims. These allegations are nothing more than attempts to
relitigate matters already considered by the Court. They do not present a valid basis or relief from
For the foregoing reasons, Plaintiff’s Motion (ECF #7) is hereby denied.
IT IS SO ORDERED.
/s/Dan Aaron Polster 11/22/11
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE
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