United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion
for Relief from Final Judgment Pursuant to Fed.R.Civ.P.
60(b)(3) and/or 60(b)(6), and Incorporated Memorandum of Law
[with] Jurisdiction Pursuant to Rule 62.1
[#134] (the “Motion”). Defendants
filed a Response [#136] in opposition to the Motion. No reply
was filed. The Motion has been referred to the undersigned
for recommendation pursuant to 28 U.S.C. § 636(b) and
D.C.COLO.LCivR 72.1(c). See [#135]. Having reviewed the
entire case file and being sufficiently advised, the Court
respectfully RECOMMENDS that the Motion
[#134] be DENIED.
who proceeds as a pro se litigant,  filed this lawsuit on
October 12, 2016. See Motion for Judicial Review
[#1]. Defendants subsequently filed a Motion to Dismiss [#35]
and a Motion for Summary Judgment [#45]. Plaintiff filed a
lengthy Response [#54] in opposition to both motions, and
Defendants filed Replies [#56, #60]. On January 26, 2018, the
undersigned issued a Recommendation on the two motions,
IT IS HEREBY RECOMMENDED that the Motion to
Dismiss [#35] be GRANTED in part and DENIED as moot
in part. It is recommended that the
Motion to Dismiss be granted to the extent that all claims
against Defendant Revell be dismissed without prejudice on
the basis of lack of personal jurisdiction. It is
recommended that the remainder of the Motion
to Dismiss be [denied] as moot on the basis
of the Court's exhaustion recommendation made in
connection with the Motion for Summary Judgment [#45].
IT IS FURTHER RECOMMENDED that the Motion
for Summary Judgment [#45] be GRANTED in part and
DENIED as moot in part. It is
recommended that the Motion for Summary
Judgment be denied as moot to the extent it
is asserted by Defendant Revell, due to the Court's
recommendation regarding lack of personal jurisdiction in
connection with the Motion to Dismiss [#35]. It is
recommended that the Motion for Summary
Judgment be granted with respect to all
other Defendants to the extent that all claims against them
be dismissed without prejudice on the basis
of Plaintiff's failure to exhaust his administrative
at 11-12. Plaintiff timely filed a thorough Objection [#97]
to the Recommendation [#85], dated February 4, 2018, and
received by the Court on February 7, 2018. On March 6, 2018,
Judge Ebel adopted the Recommendation, noting in part:
Because Mr. Sutter appears pro se, we are obligated to
construe his filings liberally. Even before employing such
liberal construction, however, the Court notes that Mr.
Sutter's filings are quite strong, reaching or even
surpassing documents often filed by seasoned attorneys in
this court. The Court commends Mr. Sutter for his diligence,
especially given that he was without access to the prison law
library while drafting his objections to the magistrate's
[#89] at 1 n.1 (internal citations omitted). Final judgment
entered in favor of Defendants in this case on March 7, 2018.
See [#90]. Plaintiff has since repeatedly sought
review of that judgment in various ways, including by
invoking Fed.R.Civ.P. 59(e), by filing an appeal to the Tenth
Circuit Court of Appeals (which was dismissed on March 29,
2019, for failure to prosecute), and now by invoking
Fed.R.Civ.P. 60(b). See Motion [#134].
60(b) relief is extraordinary and may be granted only in
exceptional circumstances.” Banks v.
Katzenmeyer, No. 13-cv-02599-KLM, 2015 WL 4467373, at *5
(D. Colo. July 22, 2015) (quoting Butler v.
Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008)).
“A litigant shows exceptional circumstances by
satisfying one or more of the grounds for relief enumerated
in Rule 60(b).” Martinez v. Red's Towing,
No. 14-cv-00458-KLM, 2015 WL 328304, at *2 (D. Colo. Jan. 23,
2015) (citing Van Skiver v. United States, 952 F.3d
1241, 1243 (10th Cir. 1991). The exceptional circumstances
enumerated in Rule 60(b) are:
(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 . . .,
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 vacated; or applying it
prospectively is no longer equitable; or (6) any other reason
that justifies relief.
relies on Rule 60(b)(3) and Rule 60(b)(6) to support his
request for relief. See Motion [#134].