United States District Court, D. New Mexico
Bernest Benjamin Northeast New Mexico Detention Facility
Plaintiff pro se.
L. Vincent Paula E. Ganz New Mexico Corrections Department
Attorneys for Defendants Lawrence Artiaga and Michael Hohman.
MEMORANDUM OPINION AND ORDER ON POST-JUDGMENT
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.
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
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).
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).
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.
appealed on September 25, 2017. See Petitioner's
Notice of Appeal to Orders [Docs. 58, 59, 60, 69] & ,
(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.
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. 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.
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
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 ...