United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
case is before the court on plaintiff Bryan Richard
Howard's Motion for Reconsideration (Doc. 104). It asks
the court to reconsider the decision memorialized in the
Memorandum and Order dated June 26, 2018. Doc. 100. That
Order had granted defendants' Motion for Summary
Judgment, effectively terminating the case.
reciting the relevant procedural background, the court
evaluates Mr. Howard's arguments and explains why they do
not merit a different outcome. The court thus denies Mr.
Howard brought a Bivens action against defendants
Ray Rodgers, Doug Wettlauffer, Paul Leonhard, Roger Crooks,
and Kimberly Maurelli. Mr. Howard's Amended Complaint
alleges that defendants violated 42 U.S.C. § 1983 when
defendant Ray Rodgers sexually assaulted Mr. Howard, and the
other defendants failed to protect Mr. Howard from this
assault. See Doc. 94 at 6-12.
26, 2018, the court granted defendants' Motion for
Summary Judgment. Doc. 100. Defendants had raised Mr.
Howard's failure to exhaust his administrative remedies
as an affirmative defense to his claims. The court held that
the summary judgment facts established Mr. Howard had failed
to assert an administrative complaint alleging the same facts
as Mr. Howard's Complaint. Mr. Howard thus had not
exhausted his administrative remedies, as the Prison
Litigation Reform Act of 1995 (“PLRA”)
requires. Based on his failure to exhaust, the court
granted summary judgment against Mr. Howard's claim. Mr.
Howard now seeks relief from the court's order under
Federal Rule of Civil Procedure 60.
60(b) permits a district court to relieve a party from a
final judgment or order. A court may grant a Rule 60(b)
motion on the following grounds:
(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 . . .; or (6) any other reason that
Fed. R. Civ. P. 60(b). But relief under Rule 60(b) is
“ʻextraordinary and may only be granted in
exceptional circumstances.'” Lebahn v.
Owens, 813 F.3d 1300, 1306 (10th Cir. 2016) (quoting
ClearOne Commc'ns, Inc. v. Bowers, 643 F.3d 735,
754 (10th Cir. 2011)). A Rule 60(b) motion is no substitute
for a direct appeal, and a party may not revisit issues
already presented in prior filings. Id.
motions “are inappropriate vehicles to reargue an issue
previously addressed by the court when the motion merely
advances new arguments, or supporting facts which were
available at the time of the original motion.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (“Absent extraordinary circumstances .
. . the basis for the second motion must not have been
available at the time the first motion was filed.”);
see also Scott v. Weaver, 736 Fed.Appx. 715, 718-19
(10th Cir. 2018) (quoting and citing Servants of
Paraclete, 204 F.3d at 1009).
Howard argues that, while in custody in the Special Housing
Unit at the Federal Correctional Institution in Oxford,
Wisconsin,  he received no response to his
communications with Federal Bureau of Prisons officials
seeking remedies for his complaints. He asserts that he
documented these communications and that his former counsel
in this case-Mr. Fred Bellemere-has Mr. Howard's notes
about them. The rules governing the administrative complaint
process are “not clear at all, ” Mr. Howard
contends, and several cases support the court's
reconsideration of its summary judgment order. Doc. 104 at 1.
Specifically, he argues, these cases show that Mr.
Howard's actions sufficed to exhaust his administrative
remedies. And defendant Ray Rodgers's personnel file, he
asserts, will show a “track record” of the type
of behavior Mr. Howard alleges in his Complaint. Id.
Finally, Mr. Howard makes a “good faith” offer to
dismiss all defendants except defendant Rodgers from his
suit, presumably in exchange for the court's
reconsideration of its ruling on defendants' summary
cases Mr. Howard cites largely address the sufficiency of
claims by other prisoners that they-in their cases-had
exhausted their administrative remedies. Mr. Howard
compares his facts to the facts of these other cases, hoping
to show he, too, exhausted the administrative remedies
available to him. He asserts that: (1) prison officials
failed to respond to Mr. Howard's complaints; (2) Mr.
Howard's handbook provided no guidelines about the
appeals process for his complaints; (3) Mr. Howard should