Louis Talley v. Officer J. Starkey

2018 DNH 126

• Court: District Court, D. New Hampshire
• Decided: June 19, 2018
• Docket: 17-cv-85-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Louis Talley

v. Case No. 17-cv-85-SM Opinion No. 2018 DNH 126 Officer J. Starkey

O R D E R

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

2 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 establishes

3 the factual basis for the equal-protection claim asserted in his

complaint.

The exhibit at issue is a response he received to a Central

Office Administrative Remedy Appeal he submitted to the Federal

Bureau of Prisons (“BOP”) concerning the same misconduct, by CO

Starkey, upon which this action is based. In the BOP’s

response, Ian Connors, Administrator of National Inmate Appeals,

indicated that his office “concur[red] with the manner in which

the Warden and Regional Director [had] addressed [Talley’s]

concerns.” Doc. no. 7, at 2 of 5. He continued:

Staff conduct is governed by Program Statement 3420.11, Standards of Employee Conduct, and the Bureau of Prisons takes seriously any allegation of staff misconduct, such as those you raised in this remedy cycle. We look into matters which may constitute inappropriate conduct and refer them to another component of the Bureau of Prisons for appropriate action. The matter has been forwarded to the appropriate Bureau component for further review.

Id. While the passage quoted above indicates that the BOP

intended to further investigate Talley’s claim, it is not, as

Talley suggests, an admission by the BOP that CO Starkey

committed the equal-protection violation on which Talley bases

his Bivens claim.

In his motion, Talley does nothing more than restate the

arguments he made in his objection to the magistrate judge’s

report and recommendation, arguments that this court has already

considered and rejected. Talley has failed to demonstrate,

4 therefore, that if the court were to vacate the judgment in this

case, “he has the right stuff to mount a potentially meritorious

claim.” Rivera-Velázquez, 750 F.3d at 3. Because Talley has

failed to provide grounds to grant him relief from judgment

under Rule 60(b)(6), his motion (Doc. No. 14) is denied.

SO ORDERED.

__________________________ Steven J. McAuliffe United States District Judge

June 19, 2018

cc: Louis Talley, pro se