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Benjamin v. Jackson

United States District Court, D. New Mexico

December 18, 2017

BERNEST BENJAMIN, Plaintiff,
v.
JAMES JACKSON; LAWRENCE ARTIAGA and MICHAEL HOHMAN, [1] Defendants.

          Bernest Benjamin Northeast New Mexico Detention Facility Plaintiff pro se.

          Nancy L. Vincent Paula E. Ganz New Mexico Corrections Department Attorneys for Defendants Lawrence Artiaga and Michael Hohman.

          MEMORANDUM OPINION AND ORDER ON POST-JUDGMENT MOTIONS

         THIS MATTER comes before the Court on the United States Court of Appeals for the Tenth Circuit's Order (dated October 31, 2017), filed October 31, 2017 (Doc. 85)(“Tenth Cir. Order”), abating the appeal pending the Court's disposition of any motion listed in rule 4(a)(4) of the Federal Rules of Civil Procedure that Plaintiff Bernest Benjamin timely filed, see Tenth Cir. Order at 1-2. None of the pending motions qualify as a rule 4(a)(4) motion. See Motion in Leave for Motion to Severance Claims and Claim “One” James Jackson to seek Leave of the Court to Proceed in Pursuant to 28 U.S.C. Sec. 1915 [Doc. 65], filed September 25, 2017 (Doc. 73) (“First Motion”); Motion for Leave to Amend/Supplement Pleading in [Doc. 55] & [Doc. 61] “Nunc Pro Tunc” and Make Additional Factual Finding Thereof, filed September 25, 2017 (Doc. 74)(“Second Motion”); Motion in Leave to Amend/Supplement the Record/Pleading of [Doc.'s 56 & 57]; and Consolidate to [Doc. 42] Nunc Pro Tunc and Make Additional Factual Findings Thereof; or Alter Judgment [Doc. 69]; 48 & 58] Nun Pro Tunc and Use Internal Facts & “Affidavit” of Cause (1) as Affidavit for this Cause (2) of; Lawrence Artiaga & Michael Hohman, filed September 26, 2017 (Doc. 77)(“Third Motion”); Motion for Leave in Plaintiff to Motion the Count for an Extension of Time per [Doc. 74] Rule 59(e) & 15, filed October 17, 2017 (Doc. 82) (“Fourth Motion”); Motion in Leave Motion for Extension of Time for [Doc. 77] & 74] & Amend & Consolidate to [Doc. 82], filed October 23, 2017 (Doc. 83)(“Fifth Motion”). The Court will deny them.

         PROCEDURAL BACKGROUND

         Benjamin's Prisoners Civil Rights Complaint, filed August 28, 2014 (Doc. 1) (“Complaint”), asserts claims against Defendant James Jackson for an alleged incident on June 8, 2012. See Complaint at 5-9. Benjamin also asserts claims against Defendants Lawrence Artiaga and Michael Hohman for an unrelated incident on November 8, 2012. See Complaint at 9. Benjamin paid the full filing fee and did not proceed in forma pauperis (“IFP”). See Notice of Payment of Filing Fee, dated September 11, 2014 (Doc. 4).

         Benjamin became aware no later than November of 2015 that he was responsible for serving Jackson, because he was not proceeding IFP. See Memorandum Opinion and Order Denying the Plaintiff's Post-Judgment Motions at 2, filed August 22, 2017 (Doc. 69) (“Post-Judgment MOO”). Nevertheless, by August of 2016, Benjamin still had not effectuated service. See Post-Judgment MOO at 2. The claims against Defendant Jackson were dismissed without prejudice for lack of service on August 31, 2016. See Memorandum Opinion and Order of Dismissal at 1, filed August 31, 2016 (Doc. 59).

         The Honorable Stephan M. Vidmar, United States Magistrate Judge, recommended that the Court dismiss claims against Artiaga and Hohman without prejudice for failure to exhaust administrative remedies. See Magistrate Judge's Proposed Findings and Recommended Disposition at 1, filed June 16, 2016 (Doc. 48)(“PFRD”). Despite two extensions of time, Benjamin did not timely object to the Magistrate Judge's PFRD. The Court adopted the PFRD, and dismissed the claims against Artiaga and Hohman on August 31, 2016. See Memorandum Opinion and Order Adopting Magistrate Judge's Proposed Findings and recommended Disposition at 7-8, filed August 31, 2016 (Doc. 58); Memorandum Opinion and Order of Dismissal at 1, filed 59 (Doc. 59). The Court entered Final Judgment. See Final Judgment, filed August 31, 2016 (Doc. 60).

         On August 22, 2017, the Court ruled on several motions Benjamin had filed wherein Benjamin asked for more time. See Post-Judgment MOO 5-7. The Court found that, under rule 4(m) of the Federal Rules of Civil Procedure, Benjamin had not shown good cause for his failure to timely serve Jackson and that no permissive extension was appropriate. See Post-Judgment MOO at 4-5. As to the claims against Artiaga and Hohman, the Court concluded that Benjamin had not timely objected to the PFRD and that the interests of justice would not be served by relieving him of the firm waiver. See Post-Judgment MOO at 7-8.

         Benjamin appealed on September 25, 2017. See Petitioner's Notice of Appeal to Orders [Docs. 58, 59, 60, 69] & [48], (2) to All Denied Motion Within Above Doc. Numbers Within Orders, filed September 25, 2017 (Doc. 71). On the same day that he appealed and for about one month after he appealed, Benjamin filed several additional motions with the Court. See First Motion; Second Motion; Third Motion; Fourth Motion; Fifth Motion; Benjamin Letter to the Court (dated October 22, 2017), filed October 24, 2017 (Doc. 84). Benjamin asks the Court to vacate the Final Judgment as to Jackson and reopen the case. See Second Motion at 1; Third Motion at 1; Fourth Motion at 1; Fifth Motion at 1. He asserts numerous procedural grounds. None are availing. He asks the Court to “sever” the claims against Jackson from those against the other Defendants and to allow him to proceed IFP against Jackson, presumably to relieve him of the duty to effectuate service. See First Motion at 1. He offers describes how he became separated from his legal paperwork at a halfway house. See Second Motion at 3-4. He again asks the Court to obtain records from the mailroom at the Lea County Detention Center, which he believes will support his allegation that he attempted to serve Jackson. See Second Motion at 4-5. He alleges that he did not receive certain orders from the Court while incarcerated. See Second Motion at 5-6. He insists that he was diligent in pursing his claims against Jackson. See Second Motion at 7. He urges that all of these allegations amount to good cause for failing to timely effectuate service. See Second Motion at 7. He therefore would like the Court to vacate the Final Judgment and allow him more time to either serve Jackson or to grant him IFP status so that the Court will attempt service for him. See Second Motion at 1.

         Plaintiff makes similar requests as to the judgment on the claims against Artiaga and Hohman. See Third Motion at 1-9, Fourth Motion at 1-2, Fifth Motion at 1-2. He insists that Magistrate Judge Stephan M. Vidmar misunderstood certain important facts, and he makes arguments about them. See Third Motion at 2-4. He wishes to amend his responses to the Martinez report.[2] See Third Motion at 2 (citing Response to the Martinez Report of Defendants Artiaga and Hohman on Behalf of Plaintiff, filed February 12, 2016 (Doc. 42)). He alleges that he did not understand his deadline, because he was denied access to court rules. See Fourth Motion at 1.

         ANALYSIS

         On October 31, 2017, the Tenth Circuit abated Benjamin's appeal pending the Court's disposition of any motion listed in rule 4(a)(4) of the Federal Rules of Civil Procedure that Benjamin had timely filed. See Tenth Cir. Order at 1-2. Rule 4(a) of the Federal Rules of Civil Procedure reads:

         (4) Effect of a Motion on a Notice of Appeal.

(A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure-and does so within the time allowed by those rules-the time to file an appeal runs for all parties from the entry of ...

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