United States District Court, D. New Mexico
AUGUSTIN F. GRANADO, Jr.¸ DAVID OTERO, and ERIC R. FIERRO, Plaintiffs,
FNU LNU, Wardens, Lea County Correctional Facility, Otero County Prison Facility, Santa Fe P.N.M. South, et al., Defendants.
MEMORANDUM OPINION AND ORDER
the Court are Plaintiff Augustin Granado's Motions to
Extend the Time Limits for Appeal and for Reconsideration
(“Motions”), filed June 19, 2017. (Docs. 53 and
54). Plaintiff seeks relief from the Court's February 2,
2017, decision dismissing his pro se civil rights
complaint. (Docs. 46 and 47). Plaintiff made the same request
on May 5, 2017, which was denied. (Docs. 51 and 52). Having
considered the Motions, applicable law, and Plaintiff's
new arguments, the Court will again deny all requested
filed a civil rights complaint seeking damages and release
from prison for “[a]ll actions over a period of 18
years of incarceration.” (Doc. 1). On October 25, 2016,
the Court dismissed the “kitchen-sink” complaint
but granted leave to amend. (Doc. 21). The amended complaint
was similarly deficient. It contained over a hundred claims
against various prison officials and state agencies. (Doc.
44). By a memorandum opinion and judgment entered February 2,
2017, (together, “Judgment”) the Court dismissed
the amended complaint pursuant to 28 U.S.C. §
1915(e)(2). (Docs. 46 and 47).
months later, Plaintiff filed the first motion seeking
reconsideration and/or an extension of the time to appeal the
Judgment. (Doc. 51). He argued the Court should have
considered evidence and appointed counsel before dismissing
his complaint. The Court declined to reconsider under
Fed.R.Civ.P. 60(b) and determined it lacked the authority to
extend the appeal period. (Doc. 52). Plaintiff filed the
instant Motions about a week after that ruling. He seeks
essentially the same relief but emphasizes his mental illness
and lack of legal knowledge.
Extending the Appeal Period
motion to extend the appeal period generally must be filed
within 60 days after entry of the judgment. Fed. R. App. P.
4(a)(1)(A); Fed. R. App. P. (4)(a)(5)(A); 28 U.S.C.
§§ 2107(a), (c). If the motion is untimely,
“the district court lacks authority to grant any relief
from the filing deadline.” Coots v. Allbaugh,
656 Fed. App'x 385, 386 (10th Cir. 2016) (unpublished).
See also Certain Underwriters at Lloyds of London v.
Evans, 896 F.2d 1255, 1256 (10th Cir. 1990) (district
courts are “expressly prohibit[ed] [from granting]
extensions of time for filing a notice of appeal beyond the
time limits set out in [Appellate Rule 4]”).
Court previously explained, the deadline to move for an
extension of the appeal period was April 5, 2017. Plaintiff
now argues he could not meet that deadline because his mental
health issues prevent him from concentrating for more than
thirty minutes, he lacks legal knowledge, and he has
“repeatedly be[en] moved and [been] lost in the
cog's of the N.M.D.O.C's machinations (sic).”
(Doc. 54, p. 10). However, Fed. R. App. P. (4)(a)(6) and 28
U.S.C. 2107(c) expressly provide that the 60-day period may
only be extended if the movant did not receive notice of the
judgment within 21 days of its entry. Although Plaintiff may
have transferred prisons at some point this year, he does not
contend he lacked timely notice of the Judgment, which was
mailed to his address of record on the date of entry. The
Motion to Extend the Time Limits for Appeal therefore must be
denied as untimely.
also renews his request for relief from the Judgment under
Fed.R.Civ.P. 60(b). Such relief is exceptional and generally
requires a showing of mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, or fraud.
See Fed. R. Civ. P. 60(b)(1)-(6); Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991). The
instant Motion amplifies Plaintiff's previous argument
that the Court inappropriately screened his complaint without
considering evidence or investigating his allegations. He
asserts, for example, that the Department of Corrections has
“100's if not 1, 000's of documents”
pertaining to his mental health. (Doc. 54, p. 3). As the
Court already explained, however, there is no indication such
evidence is newly discovered. More importantly,
there is no requirement that the Court consider evidence when
screening a prisoner's civil rights complaint.
See 28 U.S.C. § 1915; 42 U.S.C. § 1997(e).
also argues his three prior requests for counsel should have been
granted due to his mental illness and lack of legal
knowledge. The Court disagrees. There is no constitutional
right to counsel in civil cases, and in fact “[c]ourts
are not authorized to appoint counsel in § 1983
cases.” Rachel v. Troutt, 820 F.3d 390, 396
(10th Cir. 2016). “[I]nstead, courts can only
‘request' an attorney to take the case.”
Id. This decision is discretionary and will only be
reversed in “extreme cases where the lack of counsel
results in fundamental unfairness.” See also Hill
v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th
Cir. 2004). The fact that Plaintiff is mentally ill and lacks
legal knowledge - which is unfortunately true in many pro
se prisoner cases - does persuade the Court that counsel
the Motions appear to raise substantive claims based on
missing property, inadequate medical treatment, excessive
force, harassment, and violations of religious freedom. (Doc.
53, p. 7, 8, and 12; Doc. 54, p. 4, 6, and 7). A party may
not use a post-judgment motion to rehash issues previously
addressed or “advanc[e] new arguments … which
were otherwise available for presentation when the
original” complaint was considered. Van
Skiver, 952 F.2d at 1243 (citing Fed.R.Civ.P. 60(b)).
Therefore the Court will not modify the Judgment based on
Plaintiffs new or renewed constitutional claims.
ORDERED that Plaintiffs Motions to Extend the Time Limits for
Appeal (Doc. 54) and for ...