United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
years after the court dismissed his claims of excessive force
against four Kansas City, Kansas police officers, pro
se plaintiff Michael Berry seeks to revive his claims by
a Motion for Relief under Fed.R.Civ.Pr. 60(b)(6). Typically,
motions for relief under Rule 6 0 (b) must be made with in
one year of the judgment. Rule 60(c)(1). Rule 60(b)(6) is a
catch-all provision which provides that the court may act for
“any other reason that justifies relief.” A
motion under this rule must be made within a reasonable time.
60(b)(6) is a “grand reservoir of equitable power to do
justice in a particular case.” Van Skiver v. United
States, 952 F.2d 1241, 1244 (10th Cir. 1991) (internal
quotation marks omitted). “The Rule does not
particularize the factors that justify relief, but we have
previously ... caution[ed] that it should only be applied in
‘extraordinary circumstances.'” Liljeberg
v. Health Servs. Acquisition Corp., 486 U.S. 847, 863
(1988) (quoting Ackermann v. United States, 340 U.S.
193, 199 (1950)).
have narrowly interpreted Rule 60(b)(6). 11 Charles Alan
Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice
& Procedure § 2864, at 483 (3d ed. 2012). Thus, the
Supreme Court has observed:
To justify relief under subsection (6), a party must show
“extraordinary circumstances” suggesting that the
party is faultless in the delay. If a party is partly to
blame for the delay, relief must be sought within one year
under subsection (1) and the party's neglect must be
excusable. In Klapprott [v. United States,
335 U.S. 601, 613-614 (1949)], for example, the petitioner
had been effectively prevented from taking a timely appeal of
a judgment by incarceration, ill health, and other factors
beyond his reasonable control. Four years after a default
judgment had been entered against him, he sought to reopen
the matter under Rule 60(b) and was permitted to do so.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.,
507 U.S. 380, 393 (1993) (additional citations omitted).
allegations of legal error are insufficient to justify relief
under Rule 60(b)(6), as the Tenth Circuit related in Van
The kind of legal error that provides the extraordinary
circumstances justifying relief under Rule 60(b)(6) is
illustrated by Pierce [v. Cook & Co.,
518 F.2d 720, 722 (10th Cir. 1975) (en banc)]. In
that case, this court granted relief under 60(b)(6) when
there had been a post-judgment change in the law
“arising out of the same accident as that in which the
plaintiffs ... were injured.” Pierce, 518 F.2d
at 723. However, when the post-judgment change in the law did
not arise in a related case, we have held that “[a]
change in the law or in the judicial view of an established
rule of law” does not justify relief under Rule
60(b)(6). Collins v. City of Wichita, 254 F.2d 837,
839 (10th Cir. 1958).
952 F.2d at 1244-45.
under Rule 60(b)(6) is “not available to allow a party
merely to reargue an issue previously addressed by the court
when the reargument merely advances new arguments or
supporting facts which were available for presentation at the
time of the original argument.” Hilliard v. Dist.
Ct. of Comanche Cnty., 100 F.App'x 816, 819 (10th
Cir.2004) (internal quotations omitted). See also Pyeatt
v. Does, 19 F.Appx. 785, 788 (10th Cir. 2001) (“a
motion to reconsider [that] simply reasserts information
considered by the district court in its initial determination
... does not meet the extraordinary circumstances standard
required for Rule 60(b)(6) relief.”). Instead, relief
under Rule 60(b)(6) may be granted “when the losing
party fails to receive notice of the entry of judgment in
time to file an appeal.”6 Wright & Miller, §
2864, at 488.
Berry simply seeks to reargue an issue previously addressed
by the court. The defendants sought summary judgment on the
grounds that their actions did not violate clearly
established law. (Dkt. 65). In his response, Berry disputed
the application of qualified immunity. (Dkt. 67). The court
ultimately determined that the defendants were entitled to
the defense, and granted summary judgment. (Dkt. 73). Berry
then appealed the action (Dkt. 75), but Tenth Circuit
subsequently dismissed the matter for lack of prosecution.
present motion, Berry disputes certain factual findings made
by the court, and contends that the court erred in its
application of the law on the basis of then-existing
precedent. Berry cites no substantive change in the law since
the decision. The motion does not present extraordinary
circumstances which would permit relief under Rule 60(b)(6).
In reality, his motion is a motion for reconsideration filed
two years after the time for such a motion.
ACCORDINGLY ORDERED this 11th day of April, 2017, that the
plaintiff's Motion ...