United States District Court, District of Columbia
MARK K. BOWSER, Plaintiff,
SERGEANT D. SMITH, et al. Defendants.
N. MCFADDEN, U.S.D. J.
Mark K. Bowser, an inmate at the District of Columbia Jail,
sued the District of Columbia and Sergeant Douglas Smith
under 42 U.S.C. § 1983. But the Court granted the
District's and Sgt. Smith's motions to dismiss.
See Bowser v. Smith, 288 F.Supp.3d 136 (D.D.C. 2018)
(Bowser I); Bowser v. Smith, 314 F.Supp.3d
30 (D.D.C. 2018) (Bowser II). The Court at first
found that Mr. Bowser had failed to state a claim for
municipal liability but had stated a claim against Sgt.
Smith. See Bowser I, 288 F.Supp.3d at 144. On
reconsideration, the Court determined that Sgt. Smith had a
right to qualified immunity. See Bowser II, 314
F.Supp.3d at 35-36.
Court permitted Mr. Bowser to file an amended complaint, but
the Court required that he file it by June 29, 2018, or his
claims would be dismissed with prejudice. Bowser II,
314 F.Supp.3d at 35. By July 11 Mr. Bowser had not filed his
amended complaint. The Court thus dismissed the complaint
with prejudice and directed the Clerk to close the case.
See July 11, 2018, Minute Order.
Bowser now moves for relief under Federal Rule of Civil
Procedure 60(b). Pl.'s Mot. for Relief from J.
(“Pl.'s Mot.”), ECF No. 32. He asserts that
his failure to comply with the Court's order “rises
to the level of excusable neglect” under Fed.R.Civ.P.
60(b)(1), and extraordinary circumstances justify relief
under Fed.R.Civ.P. 60(b)(6). Id. at 3-5;
id. at 6. Out of an abundance of caution, the Court
held Mr. Bowser's motion in abeyance and permitted him to
file an amended complaint so that he could establish a
meritorious claim. See October 9, 2018, Minute
Order. Having now considered Mr. Bowser's motion, the
pleadings, relevant law, related legal memoranda in
opposition and support, and the entire record, the Court will
deny Mr. Bowser's motion for relief from judgment.
Mr. Bowser asks for relief under Rule 60(b), “[a]
document filed pro se is to be liberally
construed.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (internal quotation marks omitted). So the Court
will evaluate whether to consider Mr. Bowser's motion
under the more lenient Rule 59(e) standard. See
Arabaitzis v. Unum Life Ins. Co. of Am., -- F.Supp.3d
--, 2018 WL 6530534, * 2 (D.D.C. Dec. 11, 2018). “As a
general matter, courts treat a motion for reconsideration as
originating under Rule 59(e) if it is filed within 28 days of
the entry of the order at issue and as originating under Rule
60(b) if filed thereafter.” Owen-Williams v.
BB&T Inv. Servs., Inc., 797 F.Supp.2d 118, 121-22
(D.D.C. 2011). Mr. Bowser's motion for relief from
judgment is dated July 30, 2018, less than 28 days after the
Court's July 11 Minute Order dismissing the case. Thus,
he is entitled to consideration under Rule 59(e) and its more
forgiving standard. See Arabaitzis, 2018 WL 6530534
at * 2.
even Rule 59(e) has its limits. “Rule 59(e) permits a
court to alter or amend a judgment, but it may not be used to
relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of
judgment.” Leidos v. Hellenic Republic, 881
F.3d 213, 217 (D.C. Cir. 2018) (quoting Exxon Shipping v.
Baker, 554 U.S. 471, 486 n.5 (2008)). “And the
moving party has the burden of proving that relief under Rule
59(e) is warranted.” Arabaitzis, 2018 WL
6530534 at * 2. Courts may grant a Rule 59(e) motion only
“(1) if there is an intervening change of controlling
law; (2) if new evidence becomes available; or (3) if the
judgment should be amended in order to correct a clear error
or prevent manifest injustice.” Leidos, 881
F.3d at 217 (cleaned up). None applies here.
Bowser has pointed to no intervening change in law or new
evidence. See Pl.'s Mot.; Pl.'s Am. Compl.,
ECF No. 40. Instead, he seeks relief because he claims that
his failure to comply with the Court's order to file an
amended complaint by June 29, 2018, stemmed from
circumstances outside his control. See Pl.'s Mot
at 5. But the Court is convinced that Mr. Bowser alone is
responsible for violating the order. And there is no manifest
injustice when “a party could have easily avoided the
outcome, but instead elected not to act until after a final
order had been entered.” Arabaitzis, 2018 WL
6530534 at * 2 (quoting Ciralsky v. CIA, 355 F.3d
661, 665 (D.C. Cir. 2004)).
Bowser asserts that he could not comply with the Court's
order because the jail suddenly moved him to a different
housing unit and jail staff separated him from his property.
Pl.'s Mot. at 5. He also claims that jail staff prevented
him from accessing the jail's law library and his case
manager. Id. But no convincing evidence supports his
claims, and Sgt. Smith has submitted a declaration from
Jennifer Postell, Department of Corrections' Program
Support Specialist, refuting Mr. Bowser's allegations,
see Postell Decl., ECF No. 34-1.
Postell acknowledges that the jail moved Mr. Bowser to a new
housing block from June 19 to July 12, 2018, so that the jail
could address a plumbing issue in his original housing block.
Id. ¶ 4. But “[d]uring the move, the
inmates were responsible for packing their own belongings and
moving them.” Id. ¶ 5. What is more,
“Mr. Bowser lives in restrictive housing, and, as such,
does not have regular access to the jail law library.”
Id. ¶ 6. “Rather, he must submit an
inmate request slip through his case manager, requesting the
law librarian's assistance.” Id.
“Mr. Bowser continued to have access to the law library
through the request slip system, after being moved, ”
id., and the jail's records reflect that Mr.
Bowser had access to his case manager during the move,
see Id. ¶ 7. More still, Mr. Bowser sent two
pieces of mail on June 25, 2018, before the filing deadline.
Id. ¶ 9. He therefore could have sent a motion
to the Court requesting an extension of time if he was denied
access to his legal resources. But he did not take that step.
Bowser responds with his own declaration, alleging that Ms.
Postell is wrong. See Reply in Supp. of Pl.'s
Mot. for Relief from J., ECF No. 38. But this declaration
does not move the needle. Mr. Bowser bears the burden to show
that he is entitled to relief under Rule 59(e),
Arabaitzis, 2018 WL 6530534 at * 2, and Mr.
Bowser's self-serving declaration does not persuade the
Court to disbelieve Ms. Postell, whose declaration is based
on access to “housing records, telephone logs, mail
logs, and library logs, ” Postell Decl., ¶¶
3, 4, 6-9. Indeed, the assertions in Mr. Bowser's
declaration-that Ms. Postell “has never personally been
to [his] housing unit” and the records she cites do not
exist-are irrelevant and not credible, respectively. And Mr.
Bowser has cited no authority that would require the Court to
credit his declaration over Ms. Postell's.
Mr. Bowser's request for relief also fails under the more
stringent Rule 60(b) standard. See Arabaitzis, 2018
WL 6530534 at * 2 (“Relief under Rule 60(b) is more
restrictive than under Rule 59(e).”). For the reasons
already given, there was no “excusable neglect”
here that would warrant relief under Rule 60(b)(1).
“[F]ault in the delay remains a very important
factor-perhaps the most important factor-in determining
whether neglect is excusable.” Webster v.
Pacesetter, Inc., 270 F.Supp.2d 9, 14 (D.D.C. 2003)
(quoting City of Chanute v. Williams Natural Gas
Co., 31 F.3d 1041 (10th Cir. 1994)). This “most
important” factor cuts against Mr.
relief warranted under Rule 60(b)(6), because relief under
that rule is appropriate only in “extraordinary
circumstances.” See Gonzalez v. Crosby, 545
U.S. 524, 536 (2005). The only “extraordinary
circumstances” Mr. Bowser cites is the jail staff
allegedly denying him access to legal resources. See
Pl.'s Mot. at 6. Having already found that Mr. Bowser has
failed to carry his burden to offer convincing evidence that
the jail staff denied him access to those resources, ...