Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-00174-WDM-MJW

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Filed 09/16/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-174-WDM-MJW OLOYEA D. WALLIN, Plaintiff, v. F. DYCUS, MR. GILBERT, OFFICER MR. DOMENICO, MS. TRAUB, Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT AND ORDER FROM FEBRUARY 3, 2004 AND MOTION FOR RELIEF FROM ORDER OF DECEMBER 28, 2004, PURSUANT TO FED. R. CIV. P. 60(b) ______________________________________________________________________________ Defendants Dycus, Gilbert, Domenico, and Traub, by and through their attorneys, Hall & Evans, L.L.C., hereby file their Response to Plaintiff's Motion for Relief from Judgment and Order from February 3, 2004 and Motion for Relief from Order of December 28, 2004, Pursuant to Fed. R. Civ. P. 60(b) as follows: INTRODUCTION Plaintiff filed this case in 2003 against numerous prison officials alleging they violated his Eighth Amendment rights and Colorado tort law. The complaint arises from an incident where Defendant Dycus allegedly used excessive force while applying restraints, as well as claims of inadequate medical care occurring after the incident. Defendants filed motions to dismiss resulting in a recommendation and order dated February 3, 2004, that certain claims and parties be dismissed for failure to plead exhaustion of administrative remedies. Plaintiff was

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ordered to file an amended complaint and when he failed to do so his case was dismissed without prejudice on December 28 2004. Plaintiff appealed the dismissal of his claims and parties on grounds of exhaustion of administrative remedies as set forth in the February 3, 2004 order, and the dismissal of the remainder of the case as ordered on December 28, 2004. Plaintiff filed a Petition for Appeal by Permission on March 18, 2004, shortly after the February 3, 2004 order was entered. His appeal was abated by order dated July 22, 2004 pending disposition by the district court of Plaintiff's Motion to Request Finalization of Order filed June 7, 2004. [Doc. #130]. On January 28, 2005 after receipt of the December 28, 2004 order dismissing the remainder of the case without prejudice, the order of abatement was lifted. Plaintiff filed his Opening Brief on June 17, 2005. In the Opening Brief Plaintiff sought reversal of the district court orders of February 3, 2004, including the court's order dismissing the unnumbered claims and parties, as well as the court order of December 28, 2004 dismissing the case without prejudice. The Tenth Circuit issued an Order and Judgment on September 11, 2006 affirming the district court orders and judgment. Plaintiff filed a Petition for Rehearing on December 18, 2006. On February 15, 2007, the Tenth Circuit granted rehearing sua sponte in light of the Supreme Court decision in Jones v. Bock, 127 S. Ct. 910 (January 22, 2007). On February 23, 2007, the Tenth Circuit revisited its previous order based on the decision of Jones v. Bock, supra, affirming in part and remanding in part based on the decision. On June 16, 2008, this Court instructed Plaintiff to file an amended complaint consistent with the appellate court decision. [Doc. #278]. Plaintiff filed his Amended Complaint on July 21, 2008. [Doc. #279].

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Defendants filed a motion to dismiss or alternatively for summary judgment on August 12, 2008. [Doc. #287]. SUMMARY OF ARGUMENT This Court should deny Plaintiff's motion as untimely in that it was not filed within a reasonable period of time after or within one year after the judgment, and the filing of a notice of appeal does not toll the time to file a motion under Fed. R. Civ. P. 60(b). The motion should also be denied because the Tenth Circuit already issued its judgment and order. To the extent Plaintiff felt the Judgment and Order on appeal were in error he should have filed a petition for rehearing with the Tenth Circuit or appealed. Finally, there is no efficiency by allowing the previously dismissed claims and parties to be added after over four years of litigation. ARGUMENT I. PLAINTIFF'S RULE 60(b) MOTION IS UNTIMELY AND SHOULD BE DENIED Plaintiff contends that the court erred in its February 3, 2004 order in dismissing certain unnumbered claims and parties. Plaintiff's position is that the intervening Supreme Court

decision in Jones v. Bock, supra, the basis of the Tenth Circuit's amended order, requires this court to reconsider its prior position as legally erroneous. Plaintiff further contends that he had to wait until the appeal was over to file such challenge to the Order and Judgment of February 3, 2004 and December 24, 2004 and that his motion is timely under Fed. R. Civ. P. 60(b) since it was tolled from the time of the appeal. Plaintiff provides no authority for his statement that he had to wait until after conclusion of the appeal to file a motion under Rule 60 nor does provide authority for his statement that the appeal tolled his time to file the Rule 60 motion.

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Fed. R. Civ. P. 60(b) provides that motions under Rule 60(b) must be made within a reasonable time and for motions under subsections (1) (2) and (3), no more than one year after entry of judgment or order or the date of proceedings. While Plaintiff does not state what subsection he intends to proceed, the only logical subsection is (1), mistake, inadvertence, surprise, or excusable neglect. In certain circumstances courts have granted relief under Rule 60(b)(1) on a theory of mistake of law. Morris v. Adams-Mills Corporation, 758 F.2d 1352 (10th Cir. 1985). The only other subsection Plaintiff could arguably proceed under, subsection (6), is only available in extraordinary circumstances and only when necessary to accomplish justice. Cashner v. Freedom Stores, Inc., et. al., 98 F.3d 572 (10th Cir. 1996). Courts have determined the time frame to file a motion pursuant to subsection (1) challenging a substantive ruling of the district court is within thirty days of the judgment or ruling, or within the time frame to file a notice of appeal. Id. at 578. Plaintiff failed to file the within motion within thirty days of the dismissal of his action, December 24, 2008, the time frame sought to appeal. Even assuming the motion under Rule 60(b) was not ripe until the Supreme Court decided Jones v. Bock, supra, on January 22, 2007, Plaintiff should have filed his Rule 60(b) motion based on the changed legal circumstances on or before February 22, 2007. Finally, irrespective of what date is used to calculate the thirty day time frame, Plaintiff's motion was still filed more than one year after the entry of judgment or order. Finally, contrary to Plaintiff's assertion herein, an appeal from a final judgment does not enlarge the time to seek relief under Rule 60(b). Cashner, supra at 579, ftn. 4.

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II.

PLAINTIFF RAISED THESE ISSUES WITH THE TENTH CIRCUIT ON APPEAL Plaintiff is attempting by way of this Rule 60(b) to raise issues of error that have already

been addressed on appeal. Plaintiff's notice of appeal and opening brief clearly raise the issue that the district court erred in dismissing the unnumbered claims and parties on grounds of exhaustion, and that the court erred in dismissing his case for failing to comply with court orders to file an amended complaint. To the extent Plaintiff was dissatisfied with the appellate court decision his remedy was to file a petition for rehearing or for further appeal, not to proceed with a Rule 60(b) motion at the district court after his appeal was concluded. III. ALLOWING PLAINTIFF TO REINSTATE PREVIOUSLY DISMISSED IS NOT EFFICIENT PARTIES AND CLAIMS

Plaintiff contends it will be efficient for this Court to reinstate Plaintiff's dismissed claims and parties as the claims are pending in another case filed by Plaintiff. Defendants disagree. There is nothing efficient about reinstating parties and claims after four years of litigation and appellate proceedings to the Tenth Circuit merely because Plaintiff has filed a second lawsuit incorporating the claims and defenses. To the extent Plaintiff's claims and parties have merit, they can be litigated in 07-cv-00318. Dated this 16th day of September 2008.

s/Jennifer L. Veiga Jennifer L. Veiga, #17093 HALL & EVANS, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202 (303) 628-3300 ATTORNEYS FOR DEFENDANTS ABOVE NAMED

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 16th day of September 2008, a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT AND ORDER FROM FEBRUARY 3, 2004 AND MOTION FOR RELIEF FROM ORDER OF DECEMBER 28, 2004, PURSUANT TO FED. R. CIV. P. 60(b) was filed via CM/ECF and served via United States mail, postage prepaid, and addressed to the following: Oloyea Wallin, # 111389 Colorado Territorial Correctional Facility P.O. Box 1010 Canon City, Colorado 81215

s/ Denise Gutierrez Jennifer L. Veiga, Esq. Attorneys for Defendant Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 293-3238 fax [email protected]

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