Harris v. Elam et al
Filing
74
OPINION and ORDER denying 64 Motion for Reconsideration ; granting 72 Motion for Extension, seeking additional time to present evidence and objections, is GRANTED, and his Objections, ECF No. 73 , are hereby DEEMED timely filed; but the 71 Report and Recommendations is adopted fully. Signed by Judge James P. Jones on 8/24/2020. (Opinion and Order mailed to Pro Se Party via US Mail)(slt)
Case 7:17-cv-00147-JPJ-PMS Document 74 Filed 08/24/20 Page 1 of 4 Pageid#: 796
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ALEXANDER HARRIS,
Plaintiff,
v.
MARCUS ELAM, ET AL.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 7:17CV00147
OPINION AND ORDER
By: James P. Jones
United States District Judge
Alexander Harris, Pro Se Plaintiff; Margaret H. O’Shea Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
the Defendants.
This matter is before me on a Report and Recommendation (“Report”)
prepared by United States Magistrate Judge Pamela Meade Sargent. The pro se
plaintiff, Alexander Harris, has filed objections to the Report and a motion asking
for them to be timely filed. After review of the record, I conclude that his pending
motions must be denied.
By Opinion and Order entered April 30, 2020, I adopted Judge Sargent’s prior
Report and dismissed this case. That Report found that Harris, who had failed to
properly exhaust administrative remedies at River North Correctional Center (“River
North”) as required under 42 U.S.C. § 1997e(a), had also failed to provide credible
evidence that administrative remedies were unavailable to him. In May 2020, Harris
filed a motion asking for reconsideration of the dismissal (“Motion for Relief”). I
Case 7:17-cv-00147-JPJ-PMS Document 74 Filed 08/24/20 Page 2 of 4 Pageid#: 797
referred this motion to Judge Sargent, who prepared the pending Report
recommending denial of the Motion for Relief.
Judge Sargent construes the Motion for Relief as arising under either Rule
59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Specifically, Harris’s
Motion for Relief argues that his ability to prove his exhaustion efforts was
hampered because River North officials did not provide him with Virginia
Department of Corrections (“VDOC”) Informal Complaint and Regular Grievance
forms that include triplicate copies — white, yellow, and pink — of any such remedy
an inmate writes. Apparently, Harris’s contention is that if he could have used such
forms, he would have had copies of the Informal Complaints that he claims he wrote
and submitted, to prove his exhaustion efforts. The sample triplicate forms he
submits with the Motion for Relief have no connection to his claims, however. Judge
Sargent’s Report also finds no evidence that Harris was justified in failing to present
this purportedly new evidence at an earlier stage of the litigation — before I
dismissed the case. Finally, the Report finds that Harris’s new evidence (the
triplicate forms) is not material, because even if considered, it is not likely to produce
a different outcome on the exhaustion issue.
The Report notified the parties that they had fourteen days to file any
objections to its findings and recommendations. Harris submitted a motion asking
for more time to file objections. Now, nearly two weeks later, he has submitted his
-2-
Case 7:17-cv-00147-JPJ-PMS Document 74 Filed 08/24/20 Page 3 of 4 Pageid#: 798
objections. As an attachment, he submits an affidavit from another inmate who has
assisted him in this case, who attempts to explain why Harris did not have the
triplicate form samples in his possession to submit as exhibits earlier in this case.
While I will accept Harris’s objections and the attached affidavit as timely filed, I
do not find any basis for the relief he seeks.
Whether to grant a Motion to Alter or Amend Judgment under either Rule 59
or Rule 60 is within the discretion of the court. RGI, Inc. v. Unified Indus., Inc., 963
F.2d 658, 662 (4th Cir. 1992); Evans v. United Life & Accident Ins. Co., 871 F.2d
466, 472 (4th Cir. 1989). Furthermore, to grant relief on either type of motion, I
would need to find that the new evidence offered is material and likely, if considered,
to produce a new outcome. Boryan v. United States, 884 F.2d 767, 771 (4th Cir.
1989).
Harris simply has made no such showing. The original Report found that
Harris’s testimony about filing timely Informal Complaint forms was not credible.
The existence of triplicate forms to be used at some VDOC prisons does not prove
that officials at River North denied Harris the ability to properly file Informal
Complaint forms by the deadline he faced under the established grievance procedure.
The sample forms also cannot prove that he actually filed Informal Complaints about
his issues, as he testified to the magistrate judge. Because the newly submitted
evidence does not produce a different factual or legal outcome than the original
-3-
Case 7:17-cv-00147-JPJ-PMS Document 74 Filed 08/24/20 Page 4 of 4 Pageid#: 799
Report recommends, I will adopt the pending Report, including its recommendation
for denial of Harris’s Motion for Relief.
For the reasons stated, it is hereby ORDERED that the plaintiff’s Motion,
ECF No. 72, seeking additional time to present evidence and objections, is
GRANTED, and his Objections, ECF No. 73, are hereby DEEMED timely filed; but
the Report and Recommendation, ECF No. 71, is ADOPTED in full; and the
plaintiff’s Motion for Relief, ECF No. 64, is DENIED.
ENTER: August 24, 2020
/s/ JAMES P. JONES
United States District Judge
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?