Pressley v. Huber et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 8/1/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ADAM HUBER, et al.,
CIVIL NO. 3:08-0449
On March 21, 2017, the court issued a Memorandum and Order, (Doc.
122, Doc. 123), granting in part and denying in part defendants’ motion for
summary judgment (Doc. 99). The court granted the motion with respect to
plaintiff’s failure to protect claim and his due process cost assessment claim.
Specifically, with respect to plaintiff’s failure to protect claim, the court found
that he failed to exhaust his administrative remedies with the DOC. With
respect to plaintiff’s due process cost assessment claim, the court granted
defendants’ summary judgment motion on the merits. The court also found
plaintiff failed to exhaust his excessive force claim under DC-ADM-804, the
DOC’s grievance policy, however, indicated that plaintiff may have exhausted
this claim alleging inmate abuse under DC-ADM-001 and, directed the parties
address this issue. Thus, the court denied defendants’ motion with respect to
plaintiff’s excessive force claim. The court also permitted the parties to submit
motions for summary judgment with respect to the stated issue regarding the
excessive force claim by April 21, 2017.
After being granted an extension of time, defendants filed a motion for
summary judgment on May 22, 2017, only regarding the issue of whether
plaintiff exhausted his excessive force claim under DC-ADM-001. (Doc. 127).
This motion has been fully briefed by the parties and is pending with Judge
Mehalchick for a report and recommendation.
On May 8, 2017, plaintiff, Sean Pressley, an inmate at SCI-Frackville,
filed, pro se, a motion for relief from the March 21, 2017 Order pursuant to
Fed.R.Civ.P. 60(b).1 (Doc. 126). He filed a late brief in support of his motion,
(Doc. 133), and defendants filed a brief in opposition to the motion, (Doc.
Rule 60(b) of the Federal Rules of Civil Procedure provides a limited avenue
of relief where a final judgment or order has been entered in a case based on
one or more of 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 has been reversed or discharged; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies
Despite plaintiff’s tardy brief, the court will consider his Rule 60(b)
motion. As defendants point out, the court’s March 21, 2017 Order, granting
summary judgment in favor of defendants only on some of plaintiff’s claims,
was not a final order. “Rule 60(b) grants the district court the power to relieve
a party from a ‘final judgment, order, or proceeding.’” State National Insurance
Company v. County of Camden, 824 F.3d 399, 406 (3d Cir. 2016) (emphasis
original)(citing Fed.R.Civ.P. 60(b)). The March 21, 2017 Order dismissing two
of plaintiff’s claims, but not his excessive force claim, was not a final order.
See id. Thus, since the March 21, 2017 Order was not a “final judgment,
order, or proceeding,” plaintiff’s Rule 60(b) motion is premature and will be
Since plaintiff is a pro se prisoner, the court will liberally construe his
motion. The court finds that plaintiff may have intended to file a motion for
reconsideration with respect to the March 21, 2017 Order. “Apart from Rule
60(b), the District Court has the inherent power to reconsider prior
interlocutory orders.” State National Insurance Company, 824 F.3d at 406.
“The power to reconsider prior interlocutory orders depends on the District
Court retaining jurisdiction over the case.” Id. (citing United States v. Jerry,
487 F.2d 600, 605 (3d Cir. 1973) (“[S]o long as the district court has
jurisdiction over the case, it possesses inherent power over interlocutory
orders, and can reconsider them when it is consonant with justice to do so.”).
No doubt that this court has retained jurisdiction over this case so it has
inherent power to reconsider its March 21, 2017 Order. However, even
construing plaintiff’s instant motion as one for reconsideration, plaintiff did not
timely file it. Local Rule 7.10, M.D.Pa., provides that a motion for
reconsideration must be “accompanied by a supporting brief and filed within
fourteen (14) days after the entry of the order concerned.” “Local Rule 7.10
applies to motions for reconsideration brought pursuant to Federal Rules of
Civil Procedure 54(b) or 60(b).” Nittany Outdoor Advertising, LLC v. College
Township, 179 F.Supp.3d 436, 439 M.D.Pa. 2016). Plaintiff’s motion,
considered as one for reconsideration, would fall under Rule 54(b). As such,
plaintiff’s motion failed to comply with the 14-day time limitation specified in
Local Rule 7.10. “Noncompliance with a local rule governing timeliness is
enough to warrant denial of the requested relief.” Id. Also, “[f]ederal courts
‘may deny an untimely motion if the filing party fails to demonstrate excusable
neglect.’” Id. (citation omitted).
In this case, plaintiff was issued a Standing Practice Order In Pro Se
Plaintiff Cases on March 11, 2008, shortly after he commenced this case
providing him with a copy of the pertinent Local Rules of this court, including
Rule 7.10. (Doc. 6). While the copy of Rule 7.10 which plaintiff received stated
the old time limit to file a motion for reconsideration of 10 days, the court gives
him the benefit of the revised Rule and its 14-day time limit. Even with the 14day time limit and the prison mailbox rule, plaintiff’s instant motion, deemed
filed on May 2, 2017 and considered as one for reconsideration, was not
However, plaintiff has shown excusable neglect for failing to file his
motion, deemed as one for reconsideration, in a timely manner. Plaintiff states
that he just recently received his lost documents from the DOC and that some
of these documents are relevant to the exhaustion issue under DC-ADM-804
regarding his excessive force claim and his failure to protect claim. (Doc. 133,
p. 2). In fact, defendants’ counsel verifies this representation of plaintiff in his
motion for extension of time to file a summary judgment motion. (Doc. 124).
Indeed, defense counsel concedes that “[s]ome of these records [he recently
sent to plaintiff] are relevant to the exhaustion issue under the [DOC] 804
grievance policy of the failure to protect and excessive force claims and may
warrant reconsideration of the March 21, 2017 Order and Memorandum.” (Id.,
p. 3). As such, the court shall reconsider its March 21, 2017 Memorandum
and Order since “it is consonant with justice to do so.” State National
Insurance Company, 824 F.3d at 406. Thus, the plaintiff’s late Rule 54(b)
motion for reconsideration will not be denied as time barred.
Plaintiff essentially seeks reconsideration of the March 21, 2017
Memorandum and Order with respect to his failure to protect and excessive
force claims and the court’s finding on both claims that he failed to exhaust
his administrative remedies under DC-ADM-804 of the DOC’s grievance
policy. Plaintiff states that he has new evidence which was not previously
available to him due to his lost documents regarding this issue. A motion for
reconsideration is “to correct manifest errors of law or fact or to present newly
discovered evidence.” Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999) (citation omitted); Waye v. First Citizen’s Nat’l Bank, 846
F.Supp. 310, 314 (M.D.Pa. 1994) (“A motion for reconsideration is not to be
used to reargue matters already argued and disposed of.”), aff’d, 31 F.3d
1174 (3d Cir.1994). State National Insurance Company, 824 F.3d at 406.
The court finds that plaintiff should be afforded the opportunity to
present his newly discovered evidence since it may be pertinent to the
exhaustion issue under DC-ADM-804 with respect to his failure to protect and
excessive force claims. Thus, the court will grant plaintiff’s motion for
reconsideration and vacate the March 21, 2017 Order to the extent that it
granted defendants’ (Doc. 99) summary judgment motion with respect to
plaintiff’s failure to protect claim. The court will also vacate its finding in its
Memorandum with respect to plaintiff’s failure to protect and excessive force
claims that he failed to exhaust his administrative remedies under DC-ADM804 of the DOC’s grievance policy. Specifically, in its March 21, 2017
Memorandum, (Doc. 122, p. 14), the court stated: “The court agrees with
Defendants that according to the record, Plaintiff has failed to exhaust both
his excessive force claim and his failure to protect claim through DC-ADM804.” The court will permit the parties time to file summary judgment motions
regarding the exhaustion issue under DC-ADM-804 with respect to plaintiff’s
failure to protect and excessive force claims.
Accordingly, plaintiff’s motion for relief from the March 21, 2017 Order
pursuant to Fed.R.Civ.P. 60(b), (Doc. 126), will be DENIED AS
PREMATURE. Insofar as plaintiff’s Doc. 126 motion is construed as a motion
for reconsideration with respect to the March 21, 2017 Order, it will
GRANTED. An appropriate order will issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: August 1, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2008 MEMORANDA\08-0449-02.wpd
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