Alford v. Chambers-Smith et al

Filing 31

REPORT AND RECOMMENDATION: Re 30 MOTION for Relief From Judgment. It is RECOMMENDED that the Court DENY the Motion for Relief from Judgment. Objections to R&R due by 1/31/2023. Signed by Magistrate Judge Elizabeth Preston Deavers on January 17, 2023. (jlk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:20-cv-03879-ALM-EPD Doc #: 31 Filed: 01/17/23 Page: 1 of 8 PAGEID #: 253

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRIAN K. ALFORD,
Plaintiff,
Civil Action 2:20-cv-3879
Chief Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.
ANNETTE CHAMBERS-SMITH, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of the Motion for Relief from Judgment
Pursuant to Federal Rules of Civil [P]rocedures 60[(B)](4)(6). (ECF No. 30 (the “Motion for
Relief from Judgment”).) For the reasons that follow, it is RECOMMENDED that the Court
DENY the Motion for Relief from Judgment.
I.
Plaintiff filed his Complaint on July 31, 2020, but failed to either pay the requisite filing
fee or file an application for leave to proceed without prepayment of fees. (ECF No. 1.) After
the Court issued a Notice of Deficiency on August 5, 2020, ECF No. 2, Plaintiff filed a Motion
for Leave to Proceed in forma pauperis on August 20, 2020. (ECF No. 5.) On August 25, 2020,
the Undersigned issued a Report and Recommendation, recommending that the Court deny
Plaintiff’s Motion for Leave to Proceed in forma pauperis because Plaintiff has accumulated
three strikes within the meaning of the Prisoner Litigation Reform Act, 19 U.S.C. § 1915(g).
(ECF No. 6.) On October 1, 2020, Plaintiff objected to the Report and Recommendation. (ECF
No. 9.) On January 19, 2021, the Court adopted the Undersigned’s Report and Recommendation

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and denied Plaintiff’s Motion for Leave to Proceed in forma pauperis. (ECF No. 10.) On
January 21, 2021, the Undersigned ordered Plaintiff to pay the entire $402.00 filing fee within
thirty (30) days. (ECF No. 11.) The Undersigned cautioned Plaintiff that failure to pay the
requisite filing fee within thirty (30) days would result in the dismissal of the action. (Id.)
On February 19, 2021, Plaintiff filed a Motion to Alter or Amend Judgment Pursuant to
Fed. R. Civ. P. 59(e), moving to amend or alter this Court’s earlier judgment denying him in
forma pauperis status pursuant to Federal Rule of Civil Procedure 59(e). (ECF No. 12 (the
“Motion to Alter or Amend Judgment”).) In the Motion to Alter or Amend Judgment, Plaintiff
requested that the Court reconsider its previous Order denying Plaintiff leave to proceed in forma
pauperis because his circumstances, as alleged in Plaintiff’s “Amended Complaint,” fit the
requirements of the “imminent danger” exception to the Prison Litigation Reform Act. (Id.) In
support, Plaintiff specifically argued that he was in “imminent danger to serious injury or death
for failing to treat for a life threatening illness, and for failing to adequately test inmate
population for COVID-19.” (Id.)
On February 26, 2021, Plaintiff had not paid the requisite $402.00 filing fee.
Accordingly, the Undersigned recommended that the action be dismissed without prejudice for
failure to prosecute. (ECF No. 13.) On March 12, 2021, Plaintiff objected to the Report and
Recommendation, again arguing that he should have been granted leave to proceed in forma
pauperis because he had sufficiently alleged that Defendants had placed him in imminent danger
of death. (ECF No. 14.) On March 25, 2021, Interested Party the State of Ohio filed a Response
to Plaintiff’s Objections. (ECF No. 15.) On April 8, 2021, Plaintiff filed a Reply in further
support of his Objections. (ECF No. 16.) On July 1, 2021, the Court entered an Order adopting
the Report and Recommendation. (ECF No. 17.) In the Order, the Court also addressed

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Plaintiff’s Motion to Alter or Amend Judgment as follows:
Mr. Alford’s Motion to Alter or Amend Judgment, however, does little more than
restate the claims from his Complaint, Amended Complaint, and Objection to the
Magistrate Judge’s Report and Recommendation recommending denial of in forma
pauperis status. He does not provide grounds upon which this Court could infer that
TOCI has failed to treat life-threatening illnesses such that he has been placed in
imminent danger. He only states the existence of his chronic health conditions and
asserts that he did not receive treatment for residual effects of what he believes was
a COVID-19 infection. His attached grievance forms likewise do not provide
grounds to draw the inference that TOCI is placing him in imminent danger. These
forms indicate that he was unsatisfied with treatment for sinus and upper respiratory
infections, but that does not rise to the level of imminent danger. In one attachment,
Mr. Alford asserts that he did not receive blood pressure medication for ten days,
but he does not provide explanation that would allow this Court to infer that this
lapse presently places him in “real and proximate danger of serious physical
injury.” Finally, and most importantly, Mr. Alford provides no allegations or
evidence that TOCI has failed to treat either his hepatitis-C or his chronic eye
conditions, which he utilizes as the basis for his claim of imminent danger. Without
Mr. Alford putting forth any allegations of concrete ways in which TOCI is
presently failing to treat these conditions, this Court cannot draw the inference that
TOCI is placing him in imminent danger. Because Mr. Alford does not meet the
ordinary notice pleading requirement, even when his filings are liberally construed,
his Motion to Amend or Alter Judgment is DENIED.
(ECF No. 17 at PAGEID ## 160-161.) The Court therefore dismissed the action for failure to
prosecute without prejudice. (Id. at PAGEID # 161.)
On July 16, 2021, Plaintiff filed a Notice of Appeal regarding the Court’s July 1, 2021
Order. (ECF No. 19.) On August 18, 2021, Plaintiff filed a Financial Affidavit. (ECF No. 21.)
On August 20, 2021, the Court entered an Order construing Plaintiff’s Financial Affidavit as a
request to appeal in forma pauperis, and advised Plaintiff that such request was deficient
pursuant to Federal Rule of Appellate Procedure 24(a)(1). (ECF No. 22.) The Court directed
Plaintiff to file an appropriate motion with an accompanying affidavit within fourteen (14) days
if he wished to appeal in forma pauperis. (Id.) The Court subsequently granted Plaintiff until
September 17, 2021 to file an appropriate motion with an accompanying affidavit. (ECF No.
24.) On October 26, 2021, the Court denied Plaintiff’s Motion for Leave to Appeal In Forma
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Pauperis. (ECF No. 26.) The Court also noted that “this Court has already twice addressed
[Plaintiff’s] objections concerning imminent danger and found that he is barred by 28 U.S.C. §
1915(g) from proceeding in forma pauperis.” (Id. at PAGEID # 215.) On February 2, 2022, the
United States Court of Appeals for the Sixth Circuit denied Plaintiff’s motion for leave to appeal
in forma pauperis and advised Plaintiff that “[u]nless [he] pays the $505 filing fee within thirty
days of the entry of this order, this appeal will be dismissed for want of prosecution.” (ECF No.
27 at PAGEID # 220.) Plaintiff never paid the filing fee, so on June 10, 2022, the Sixth Circuit
dismissed Plaintiff’s appeal for want of prosecution. (ECF No. 27.) On August 10, 2022,
Plaintiff filed the subject Motion for Relief from Judgment. (ECF No. 30.)
II.
In the subject Motion for Relief from Judgment, Plaintiff summarizes the allegations of
his Complaint and restates the arguments from his Motion to Alter or Amend Judgment. (ECF
No. 30.) Plaintiff also extensively cites to Smith v. DeWine, 476 F. Supp. 3d 635 (S.D. Ohio
2020), before concluding that “[b]ecause [he] sufficiently alleged that he is under imminent
danger of serious physical injury due to the failure to treat for his liver, eye and other conditions,
the District Court's denial of leave to proceed in forma pauperis was an abuse of discretion and
therefore ‘Void.’” (Id. at PAGEID # 237.) Plaintiff therefore purports to seek relief from
judgment pursuant to Federal Rules of Civil Procedure 60(b)(4) and 60(b)(6). (Id.)
Rule 60(b) permits this Court to grant a motion for relief from a final 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;
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(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). Although trial courts have “especially broad” discretion in considering
motions made under Rule 60(b), “[t]he grant of relief under Rule 60(b) is circumscribed by
public policy favoring finality of judgments and termination of litigation.” Payne v. Houk, No.
2:18-CV-646, 2018 WL 4468246, at *1 (S.D. Ohio Sept. 18, 2018) (quoting Tyler v. Anderson,
749 F.3d. 499 (6th Cir. 2014) (internal quotation marks and citations omitted).
As discussed, Plaintiff seeks relief under Rule 60(b)(4) and (6). (ECF No. 30.) Rule
60(b)(4) “applies only in the rare instance where a judgment is premised either on a certain type
of jurisdictional error or on a violation of due process that deprives a party of notice or the
opportunity to be heard.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)
(internal citations omitted). Rule 60(b)(6), on the other hand, “is a catchall provision, which
provides for relief from a final judgment for any reason justifying relief not captured in the other
provisions of Rule 60(b).” Henness v. Bagley, 766 F.3d 550, 553 (6th Cir. 2014), cert. denied,
135 S.Ct. 1708 (2015) (internal citations omitted). “A movant seeking relief under Rule 60(b)(6)
must show ‘extraordinary circumstances’ justifying the reopening of a final judgment.”
Abdur'Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015) (citing Gonzalez v. Crosby, 545
U.S. 524, 535 (2005); Carter v. Anderson, 585 F.3d 1007, 1011 (6th Cir. 2009)), cert. denied,
137 S.Ct. 1201 (2017).
Plaintiff has failed to demonstrate that relief from judgment is appropriate under either
provision of Rule 60. First, as to Rule 60(b)(4), this Court was undoubtedly vested with the
jurisdiction to dismiss Plaintiff’s action for failure to prosecute, even if Plaintiff disagrees with
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how the Court reached that conclusion. Fed. R. Civ. P. 41(b); see also Johnson v. Metro Gov't of
Nashville & Davidson Cnty., No. 3:19-CV-00223, 2020 WL 6685540, at *3 (M.D. Tenn. Nov.
12, 2020) (holding that dismissal for actions which “amounted to a failure to prosecute . . . was
within the court’s discretion”); Richard v. Mohr, No. 2:13-CV-1013, 2019 WL 3022025, at *2
(S.D. Ohio July 10, 2019), report and recommendation adopted, No. 2:13-CV-1013, 2019 WL
3459413 (S.D. Ohio July 31, 2019). The judgment entered by this Court was therefore not void
within the meaning of Rule 60(b)(4). Next, regarding Rule 60(b)(6), Plaintiff has made no effort
to show what “extraordinary circumstances” justify the reopening of a final judgment.
Abdur’Rahman, 805 F.3d at 713.
In the end, Plaintiff’s Motion is not well taken because “[i]t is well-established that a
motion for relief from judgment is not a proper substitute for appeal.” Easterling v. Dewine, No.
3:13-CV-024, 2018 WL 7116096, at *2 (S.D. Ohio Oct. 22, 2018) (citing GenCorp. v. Olin
Corp., 477 F.3d 368, 373 (6th Cir. 2007)), report and recommendation adopted sub nom.
Easterling v. Ohio Att'y Gen., No. 3:13-CV-024, 2019 WL 315094 (S.D. Ohio Jan. 24, 2019).
Despite Plaintiff purporting to file the subject Motion under Rule 60, the Court is hard-pressed to
read the subject Motion as anything but Plaintiff’s attempt to relitigate the issues this Court
already has decided, and which Plaintiff failed to prosecute on appeal. White v. Wilkinson, 182
F.3d 920 at *1 (6th Cir. 1999) (“[P]laintiff simply cited nothing in any of his motions that could
constitute a ground for relief from the order at issue.”). Plaintiff clearly disagrees with the
Court’s conclusion that he did not qualify for the imminent danger exception and therefore could
not be granted leave to proceed in forma pauperis. But the correct avenue for Plaintiff to have
challenged this conclusion was by appeal. By failing to prosecute his appeal, Plaintiff has

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reached the end of the road.1
Accordingly, it is RECOMMENDED that the Court DENY Plaintiff’s Motion for Relief
from Judgment Pursuant to Federal Rules of Civil [P]rocedures 60[(B)](4)(6), ECF No. 30.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

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In denying Plaintiff’s application to appeal in forma pauperis, the Sixth Circuit affirmatively
noted that “[Plaintiff’s] allegations do not demonstrate that he is in imminent danger of serious
physical injury.” (ECF No. 27 at PAGEID # 220.) Accordingly, the Court need not speculate as
to how the Sixth Circuit would have ruled on the merits of Plaintiff’s appeal of the denial of his
application to proceed in forma pauperis had Plaintiff paid the filing fee and prosecuted his
appeal.
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981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted)).
Date: January 17, 2023

/s/ Elizabeth A. Preston Deavers______
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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