Brown v. Timmerman-Cooper et al

Filing 103

REPORT AND RECOMMENDATIONS that 100 MOTION for Reconsideration filed by Frank C Brown, Jr. be denied. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 7/17/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Frank C. Brown, Jr.,

:

Plaintiff,

:

v.

:

Warden Deb Timmerman-Cooper, :
et al.,
Defendants.

Case No. 2:10-cv-283
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Plaintiff Frank C. Brown, Jr., a state prisoner formerly
housed at the London Correctional Institution, filed this civil
rights action under 42 U.S.C. §1983.

In his complaint, as

explained in prior orders of this Court, Mr. Brown alleges that
he and other inmates at London were denied adequate amounts of
clothing, linens, hygiene materials, laundry detergent, washers,
dryers, and cleaning supplies.

Mr. Brown asserts that

Defendants’ actions violated the Eighth Amendment to the United
States Constitution, which prohibits cruel and unusual
punishment.
A Report and Recommendation filed on February 4, 2013
recommended granting Defendants’ motion for judgment on the
pleadings, denying Mr. Brown’s motion for a temporary restraining
order and for a permanent injunction, and dismissing the case.
(Doc. #94).

On February 13, 2013, Mr. Brown filed a motion for

an extension of time to file objections to the Report and
Recommendation.

(Doc. #96).

For good cause shown, the Court

granted Mr. Brown an extension, allowing him until March 18, 2013
to file any objections.

(Doc. #97).

Mr. Brown did not file any

objections to the Report and Recommendation.

On April 2, 2013,

the Court issued an Order adopting the Report and Recommendation.

(Doc. #98).

Consequently, judgment was entered and this case was

terminated. (Doc. #99).
On April 26, 2013, Mr. Brown filed a motion for
reconsideration and reinstatement of the complaint.

(Doc. #100).

In the motion, Mr. Brown argues that Defendants’ actions caused
him to miss the deadline to file objections to the Report and
Recommendation.

In particular, Mr. Brown claims that Defendants

transferred him to another institution, destroyed and confiscated
his legal materials, and denied him access to the law library.
Id. at 2.

Mr. Brown claims that but for Defendants’ actions, he

could have filed objections prior to the applicable deadline.
Id.
Defendants oppose Mr. Brown’s motion, arguing that Mr. Brown
fails to state a valid reason for the Court to reopen this case.
(Doc. #101).

Further, Defendants argue that they could not have

been responsible for hindering Mr. Brown’s ability to file
objections because they are not employees of the institution
where Mr. Brown is incarcerated.

Id. at 2.

More specifically,

Defendants state that they are all employed at the London
Correctional Institution, and Mr. Brown was transferred from
London to the Madison Correctional Institution in December 2011,
well before his objections were due.

Thus, Defendants urge the

Court to deny Mr. Brown’s motion.
Mr. Brown filed a reply in support of the motion, claiming
that his failure to file objections was “excusable neglect” under
Fed. R. Civ. P. 60(b) caused by Defendants’ actions.
at 1).

(Doc. #102

Accordingly, Mr. Brown maintains that this action should

be reinstated.
Fed. R. Civ. P. 60(b) permits the Court to grant relief from
final judgments, orders, or proceedings.

The rule provides:

On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order,
or proceeding for the following reasons:
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(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
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).

In determining whether relief is

justified under Fed. R. Civ. P. 60(b)(1), the Court must consider
three factors which include “(1) culpability – that is whether
the neglect was excusable; (2) any prejudice to the opposing
party; and (3) whether the party holds a meritorious underlying
claim or defense.”

Yeschick v. Mineta, 675 F.3d 622, 628-29 (6th

Cir. 2012) (quoting Flynn v. People’s Choice Home Loans, Inc.,
440 Fed. Appx, 452, 457-58 (6th Cir. 2011)).

“A party seeking

relief must first demonstrate lack of culpability before the
court examines the remaining two factors.”

Id.

The movant bears

the burden of demonstrating that this case falls within the
circumstances in Fed. R. Civ. P. 60(b).
249 F.2d 243, 245 (6th Cir. 1957).

See Smith v. Kincaid,

Further, courts are “not to

disturb the finality of a judgment without good reason.”
Broussard v. Johnson, 254 F.3d 71, 71 (5th Cir. 2001).
Here, Mr. Brown has not satisfied his burden of
demonstrating that Fed. R. Civ. P. 60(b) applies due to excusable
neglect or otherwise.

Mr. Brown does not assert that he was

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unaware of the deadline to file objections to the Report and
Recommendation due to his incarcerated status or that he did not
receive notice of the Court’s order extending that deadline in
response to his motion.

Rather, Mr. Brown makes general

accusations that Defendants are liable for his failure to file
objections and that they impaired his ability to prosecute this
action.

Mr. Brown does not dispute that he was transferred from

London, where Defendants work, to Madison in December 2011.

This

transfer took place more than two years prior to the filing
deadline for the objections.

Moreover, the motion upon which the

Court granted the extension makes no reference to Defendants
allegedly impairing Mr. Brown’s ability to prosecute the case.
Although the motion does indicate that Mr. Brown faced
limitations arising from the law library, he indicated that he
“may not need the additional time, however, tis better to have
the time and not need it than to need the time and not have it.”
(Doc. #96 at 1.)
objections.

Thereafter, Mr. Brown did not file any

Because Mr. Brown fails to demonstrate excusable

neglect under Fed. R. Civ. P. 60(b), the Court will recommend
that his motion for reconsideration and reinstatement of the
complaint be denied.
Based on the foregoing, it is recommended that Mr. Brown’s
motion for reconsideration and reinstatement of the complaint
(Doc. #100) be denied.
Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or

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A judge

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/Terence P. Kemp
United States Magistrate Judge

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