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Howard v. Rodgers

United States District Court, D. Kansas

February 6, 2019

RAY RODGERS, et al., Defendants.



         This 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.

         After 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's motion.[1]

         I. Background

         Mr. Howard brought a Bivens[2] 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.

         On June 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.[3] 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.

         II. Legal Standard

         Rule 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 justifies relief.

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.

         Rule 60 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).

         III. Analysis

         Mr. Howard argues that, while in custody in the Special Housing Unit at the Federal Correctional Institution in Oxford, Wisconsin, [4] 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 judgment motion.

         The cases Mr. Howard cites largely address the sufficiency of claims by other prisoners that they-in their cases-had exhausted their administrative remedies.[5] 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 have ...

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