Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00589-REB-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00589-REB-PAC TIMOTHY DOYLE YOUNG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION UNDER FED. R. CIV. P. 60(b)(3)

Defendant United States of America ("Defendant"), by and through undersigned counsel, hereby files this Response in Opposition to Plaintiff's Motion Under Fed. R. Civ. P. 60(b)(3). (Docket No. 80). In support thereof, Defendant states as follows: BACKGROUND 1. Plaintiff Timothy Doyle Young ("Plaintiff") initiated this lawsuit on March

25, 2004 by filing a Complaint. (Docket No. 3). On May 17, 2004, Plaintiff filed his First Amended Complaint in this case. (Docket No. 10). In his Amended Complaint, Plaintiff named the United States of America as the sole defendant and asserted that this Court has jurisdiction pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679. (Amended Complaint, at p. 3).

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2.

On August 2, 2004, Defendant filed a Motion to Dismiss Pursuant to Fed.

R. Civ. P. 12(b)(1). (Docket No. 23). In this Motion to Dismiss, Defendant argued that the Court lacked subject matter jurisdiction to consider the FTCA claim raised by Plaintiff in his Amended Complaint. 3. On November 30, 2004, the Magistrate Judge recommended dismissal of

the above-captioned case for lack of jurisdiction. (Docket No. 52). 4. On February 14, 2005, the Court issued an Order adopting the report and

recommendations of the Magistrate Judge. (Docket No. 58). 5. On February 16, 2005, the Court entered judgment in favor of Defendant.

(Docket No. 59). 6. On February 25, 2005, Plaintiff filed a Motion for Reconsideration of the

Order dismissing this case. (Docket No. 60). Defendant filed a Response in Opposition to Plaintiff's Motion for Reconsideration. (Docket No. 61). The Court denied this Motion for Reconsideration by Order dated March 30, 2005. (Docket No. 72). 7. On March 10, 2005, Plaintiff filed a Notice of Appeal. (Docket No. 63).

Plaintiff's appeal was temporarily abated by the United States Court of Appeals for the Tenth Circuit, pending resolution of Plaintiff's Motion for Reconsideration by this Court. (Docket No. 66). 8. On August 25, 2005, the Tenth Circuit issued an Order and Judgment

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denying Plaintiff's appeal. (Docket No. 79).1 9. On October 7, 2005, after the Tenth Circuit had affirmed this Court's

decision, Plaintiff filed his Motion Under Fed. R. Civ. P. 60(b)(3) (hereinafter "Rule 60(b)(3) Motion") with this Court. (Docket No. 80). ARGUMENT In his Rule 60(b)(3) Motion, it appears that Plaintiff seeks to lift the February 14, 2005 and March 30, 2005 Orders of this Court dismissing this action, so that he may amend his Amended Complaint for a second time and add an "Access to Courts" claim.2 (Rule 60(b)(3) Motion, at 1). Citing to Fed. R. Civ. P. 60(b)(3), Plaintiff appears to be claiming that Defendant has engaged in fraud, misrepresentation, or misconduct, which has somehow prevented him from filing an "Access to Courts" claim. (Id. at 1-2). As support for this argument, Plaintiff attaches several documents to his Rule 60(b)(3) motion, including: (1) a Bureau of Prisons policy statement describing the administrative grievance program (Ex. 1); (2) the regulations found at 28 C.F.R. § 542.12 (Ex. 3); (3) the first page of the Bureau of Prisons policy statement describing how inmates are to file

The Tenth Circuit stated that its Order and Judgment issued on September 25, 2005, was to serve as the mandate of the Tenth Circuit. However, since that decision was issued, Plaintiff has filed a Petition for Rehearing with the Tenth Circuit in Case No. 05-1120. By filing this Petition for Rehearing, Plaintiff has temporarily stayed the Tenth Circuit's issuance of the mandate. It is not clear from Plaintiff's Rule 60(b)(3) motion what this "Access to Courts" claim entails or under what cause of action Plaintiff is seeking to bring this claim against the United States. (Id.) 3
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administrative tort claims under the Federal Tort Claims Act., (Ex. 4); and (4) handwritten documents by Plaintiff purporting to show that copies of 28 C.F.R. subpart 542 are kept at the institution where he is incarcerated, (Ex. 5-6). Federal Rule of Civil Procedure 60(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for ... fraud ..., misrepresentation, or other misconduct of an adverse party." Cummings v. General Motors Corp., 365 F.3d 944, 954 (10 th Cir. 2004). "Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990). In filing a Rule 60(b) motion, the burden is on the moving party, and he must show "clear and convincing proof" of fraud, misrepresentation, or misconduct. The application must be "clearly substantiated by adequate proof," and the challenged behavior must substantially have interfered with the aggrieved party's ability fully and fairly to prepare for and proceed at trial. Id. at 955. A plaintiff may meet his burden by showing that the defendant acted with "an intent to deceive or defraud the court," by means of a "deliberately planned and carefully executed scheme." Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10 th Cir. 1999) (quoting Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10 th Cir. 1995) (quotation omitted)).

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Here, Plaintiff has not met his burden for filing a Rule 60(b) motion because he has not shown that Defendant engaged in fraud, misrepresentation, or misconduct which would warrant this Court granting him the extraordinary remedy of vacating the Orders dismissing the above-captioned case. None of the documents that Plaintiff attaches to his Rule 60(b)(3) motion show that Defendant has acted with "an intent to deceive or defraud the court," by means of a "deliberately planned and carefully executed scheme." Yapp, 186 F.3d at 1231. Plaintiff does not present any evidence to show that Defendant, its agencies, or its officers prevented Plaintiff from raising an "Access to Courts" claim in this action. Instead, these documents merely show that the Bureau requires inmates to follow certain procedures for filing administrative grievances for constitutional tort claims against federal officers. (Rule 60(b)(3) Motion, at Ex. 1-3). CONCLUSION For the foregoing reasons, Defendant United States of America respectfully requests that the Court deny Plaintiff's Motion Under Fed. R. Civ. P. 60(b)(3). Respectfully submitted this 24 th day of October, 2005. WILLIAM J. LEONE United States Attorney s/ Amanda Rocque Amanda Rocque Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 E-mail: [email protected] 5

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CERTIFICATE OF SERVICE I hereby certify that on this 24 th day of October, 2005, a true and correct copy of the foregoing RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION UNDER FED. R. CIV. P. 60(b)(3) was placed in the U.S. Mail, postage paid, to the following non-CM/ECF participants: Timothy Doyle Young Reg. No. 60012-001 ADX - Florence P.O. Box 8500 Florence, CO 81226 Debbie Locke, Esq. Attorney Advisor Federal Correctional Complex Florence P.O. Box 8500 Florence, CO 81226

s/ Valerie Nielsen Valerie Nielsen United States Attorney's Office

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