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, et al., Defendants.
MEMORANDUM OPINION AND ORDER
the Court are various pro se motions filed by
Plaintiffs Augustin Granado, David Otero, and Eric Fierro.
(Docs. 65-69). Plaintiffs seek to amplify or amend their
civil rights claims after the Court dismissed the case and
denied several motions to reconsider. (Docs. 46, 47, 52, and
63). Having considered the motions, the Court will deny all
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 (“Judgment”), the Court dismissed the
amended complaint pursuant to 28 U.S.C. § 1915(e)(2).
(Docs. 46 and 47).
months later, Plaintiff Augustin Granado 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). Granado
appealed, but the appeal was dismissed for lack of
jurisdiction. (Doc. 64). Granado filed another set of motions
to reconsider and for an extension on June 19, 2017, which
were again denied. (Docs. 53, 54, and 63).
filed the instant pro se motions between March 12,
2018 and April 6, 2018. (Docs. 65-69). The first motion,
signed by Granado and Eric Fierro, seeks to dismiss all
defendants except the New Mexico Public Defender's Office
(Public Defender). (Doc. 65) at 1, 17. They argue the Public
Defender caused physical and mental injuries by rendering
ineffective assistance of counsel. Id. at 2. Granado
and Fierro further argue prison officials were deliberately
indifferent to medical needs. Id. at 11-15.
second motion, also signed by Granado and Fierro, seeks to
reopen this civil rights case. (Doc. 66) at 1. They argue
prison officials continue to violate their constitutional
rights; Fierro lacks medical care for his mental illness; and
state judicial officials colluded to incarcerate them.
Id. at 4-18. David Otero signed the third motion.
(Doc. 67) at 10. He appears to seek permission to amend the
(dismissed) complaint, alleging prison officials are
providing inadequate medical care. Id. at 1-10.
Granado signed the fourth motion, which seeks an extension of
the page limits applicable to pleadings and exhibits. (Doc.
68). He wishes to proffer “thousands of pages of
medical [and] psychological” records to support his
Eighth Amendment claims. Id. at 1-2. The fifth and
final motion, which is unsigned, appears to seek an order
directing service of the pro se motions on
Defendants. (Doc. 69) at 1-2.
filed the motions nearly one year after entry of the final
Judgment dismissing this case. Construed liberally, the
motions all seek relief from the Judgment so that Plaintiffs
can continue to pursue their civil rights claims. The motions
must therefore be analyzed under Fed.R.Civ.P. 60(b). See
Williams v. Akers, 837 F.3d 1075, 1077 n.1 (10th Cir.
2016) (motions seeking relief from judgment are treated under
Rule 60 if filed “outside of Rule 59(e)'s 28-day
time limit”). Rule 60(b) relief is discretionary and is
generally only warranted in exceptional circumstances.
Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). Grounds for relief include mistake,
inadvertence, surprise, excusable neglect, newly discovered
evidence, and fraud. See Fed. R. Civ. P.
this standard, Plaintiffs have not alleged a plausible
entitlement to relief under Rule 60(b). The motions primarily
seek to reassert or amplify Plaintiffs' original civil
rights arguments. However, it is well established that Rule
60(b) does not permit a losing party to rehash previous
arguments or to present new theories or facts that could have
been raised earlier. See Van Skiver, 952 F.2d at
1244 (explaining that Rule 60(b) cannot be used to revisit
issues or “advanc[e] new arguments or supporting facts
which were otherwise available for presentation when the
original [matter] was briefed”). To the extent the
motions raise new claims based on recent violations,
Plaintiffs must raise those claims in a separate complaint.
The Tenth Circuit prohibits continuous amendments that
“make the complaint a moving target” or attempt
to “salvage a lost case by untimely suggestion of new
theories.” Minter v. Prime Equip. Co., 451
F.3d 1196, 1206 (10th Cir. 2006) (quotations omitted). The
motions will therefore be denied.
Plaintiffs' pro se post-judgment motions (Docs.
65-69) are denied.
denial is without prejudice to Plaintiffs raising any new
civil rights claims (i.e., claims that arose after
this case was filed) in a separate complaint.
Clerk's Office shall mail to each Plaintiff a form
Section 1983 complaint and a form ...