United States District Court, D. New Hampshire
J. McAuliffe United States District Judge.
Talley, a federal prisoner appearing pro se, filed an action
against Corrections Officer J. Starkey (CO Starkey), pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). Specifically, he
claimed that CO Starkey violated his constitutional right to
equal protection when CO Starkey: (1) “angrily
snatched” a food tray from him and almost slammed his
hand into the slot in the door of his cell; (2) used a racial
slur to address him and his cellmate (both Talley and his
cellmate are African-American); and (3) imitated a monkey by
making both sounds and gestures.
magistrate judge recommended dismissal of Talley's
complaint, for failure to state claim upon which relief can
be granted. In an order dated September 5, 2017, the court
noted plaintiff's objection to the magistrate judge's
report and recommendation, approved the report and
recommendation, dismissed plaintiff's complaint in its
entirety, and directed the Clerk of Court to close the case.
See Order (doc. no. 10) 1. Two days later, the Clerk
of Court entered judgment in accordance with the court's
order, and closed the case. See doc. no. 11.
before the court is Talley's motion for summary judgment.
Given that judgment has already been entered in favor of
defendant, plaintiff's motion for summary judgment is
untimely. In deference to Talley's pro se status, the
court will construe his pleading as a motion for relief from
judgment, pursuant to Rule 60 of the Federal Rules of Civil
Procedure. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (explaining that pro se pleadings are to be construed
liberally). Even so, Talley is not entitled to the relief he
seeks, which is either summary judgment in his favor or the
opportunity to take his claim to trial.
Rule 60, a district court may relieve a party from judgment
for the following reasons:
(1) mistake, inadvertence, surprise, or
(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 (whether previously called
intrinsic or extrinsic), 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.
Fed. R. Civ. P. 60(b).
Talley's motion says nothing that establishes any of the
six grounds for relief described in Rule 60(b)(1)-(5), so the
court considers whether Talley's motion provides the
court with any reason to vacate the judgment of dismissal in
this case under Rule 60(b)(6). Relief under Rule 60(b) is
extraordinary, so that a party seeking relief “must
establish, at the very least, that his motion is timely; that
exceptional circumstances exist, favoring extraordinary
relief; that if the judgment is set aside, he has the right
stuff to mount a potentially meritorious claim or defense;
and that no unfair prejudice will accrue to the opposing
parties should the motion be granted.”
Rivera-Velázquez v. Hartford Steam Boiler Insp.
& Ins. Co., 750 F.3d 1, 3-4 (1st Cir. 2014).
Talley's motion is timely filed, and there are no
opposing parties in this case, so this court considers
whether, in his motion, Talley has demonstrated that he has a
potentially meritorious claim in this case. See id.
crux of Talley's argument is that the magistrate judge
and this court overlooked an exhibit that he attached to both
his complaint and his objection to the magistrate judge's
report and recommendation. In Talley's view, that exhibit