Sutter v. Goetz

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This 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]^[1] (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.

         I. Background

         Plaintiff, who proceeds as a pro se litigant, ^[2] 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, ultimately concluding:

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 remedies.

         [#85] 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 recommendation.

         Order [#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].

         II. Standard

         “Rule 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.

         Plaintiff relies on Rule 60(b)(3) and Rule 60(b)(6) to support his request for relief. See Motion [#134].

         III. ...