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Talley v. Starkey

United States District Court, D. New Hampshire

June 19, 2018

Louis Talley
v.
Officer J. Starkey

          ORDER

          Steven J. McAuliffe United States District Judge.

         Louis 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.

         The 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.

         Now 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.

         Under Rule 60, a district court may relieve a party from judgment for the following reasons:

(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 (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).

         Here, 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.

         The 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 ...


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