United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendants' Motion to
Vacate or Modify September 30, 2011 Postage Plan Order
(doc. 163) and the attendant briefing (docs.
167, 169). Because Defendants have failed to
satisfy the standards of Rule 60(b) and, in the alternative,
because their motion is not timely filed under Rule 60(c), I
RECOMMEND that the Court DENY Defendants' Motion.
filed his initial Complaint in this case on June 4, 2004.
Doc. 1. However, the relevant procedural history
begins in 2011, when Plaintiff's only remaining claim was
that he had been denied access to the courts. Doc.
120 at 1. The Court adopted the Report and
Recommendations of Magistrate Judge Schneider (doc.
105) in finding that “charging [Plaintiff] for
postage to send requests for legal materials violate[d] his
access to the Courts.” Doc. 120 at 2. Unlike
inmates housed in New Mexico, Plaintiff, who was (and still
remains) incarcerated in Virginia pursuant to the Interstate
Corrections Compact, had to pay postage in order to mail
requests for legal materials or file grievances with the New
Mexico Correctional Department (“NMCD”).
Id. Accordingly, the Court ordered Defendants to
develop a plan which would “enable Plaintiff to send
requests for legal materials and grievances to the NMCD at no
expense to himself.” Id.
subsequently filed a Plan to Allow Postage Free Legal Request
by Plaintiff to NMCD, proposing to provide Plaintiff with
three standard business envelopes, stamped and addressed to
NMCD, and to provide Plaintiff with a new stamped and
pre-addressed envelope in any response or reply sent to
Plaintiff. Doc. 121. The Court adopted this plan by
Order on September 30, 2011. Doc. 129.
August 4, 2016, Plaintiff moved to reopen the case and find
Defendants in contempt of the Order Adopting Postage Plan.
Doc. 147. The Court denied the motion to reopen the
case, finding that Plaintiff had not made the necessary
showing under Federal Rule of Civil Procedure 60(b). Doc.
153 at 4. However, it granted Plaintiff's motion to
enforce the September 30, 2011 Order. Id. at 5
(“The Court finds that Defendants have not complied
with the Court's September 30, 2011 Order and will impose a
civil-contempt sanction.”). Defendants, rather than
denying that they had failed to comply or claiming that
compliance was impossible, instead argued that they should be
relieved from compliance. Id. Defendants were
directed to file a separate motion if they wished to be
relieved. Id. at 6.
filed the instant Motion and now argue that the Order
Adopting Postage Plan should be vacated because (1) changing
conditions make compliance “progressively more
onerous”; (2) unforeseen obstacles have arisen to
compliance with the plan; (3) enforcement of the current plan
is detrimental to the public interest; and (4) it is an
“extraordinary circumstance relative to the ordinary
course of prison administration, that poses an extreme and
unexpected hardship.” Doc. 163 at 5-6. They
urge the Court to vacate or modify the 2011 Postage Plan
under Federal Rule of Civil Procedure 60(b)(5) or 60(b)(6).
Standard of Review
Court entered a Final Judgment in this case in 2011. Doc.
130. Defendants consequently request relief under Rule
60, which governs “Relief from a Judgment or
Order.” Fed.R.Civ.P. 60. Specifically, they argue that
the Order should be vacated or modified under Rule 60(b)(5)
or Rule 60(b)(6). Doc. 163 at 5-6. Relief under Rule
60(b)(5) is properly granted where “the judgment has
been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable.”
Fed.R.Civ.P. 60(b)(5). Rule 60(b)(6) allows the Court to
grant relief from a final judgment for, broadly, “any
other reason that justifies relief.” Fed R. Civ. P.
60(b)(6). Generally, relief under Rule 60(b) is
“extraordinary and may only be granted in exceptional
circumstances.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1009 (10th Cir. 2000) (internal
quotation and citation omitted).
Rule 60(b) Modification
seeking modification under Rule 60(b)(5) “bears the
burden of showing that ‘a significant change in either
factual conditions or in law' warrants revision of the
decree.” Jackson v. Los Lunas Cmty. Program,
880 F.3d 1176, 1194 (10th Cir. 2018) (quoting Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 384
(1992)). Changed factual circumstances may justify relief
from a final judgment where (1) the changed circumstances
make compliance “substantially more onerous, ”
(2) “unforeseen obstacles” render the decree
“unworkable, ” or (3) “enforcement of the
decree without modification would be detrimental to the
public interest.” Id. (quoting Rufo,
502 U.S. at 384-85). Additionally, relief is “no longer
equitable” where, owing to changed circumstances,
“ongoing enforcement of the original order” is no
longer “supported by an ongoing violation of federal
law.” Horne v. Flores, 557 U.S. 433, 454
Rule 60(b)(5) does not allow parties simply to relitigate a
closed case. It “may not be used to challenge the legal
conclusions on which a prior judgment or order rests,
but…provides a means by which a party can ask a court
to modify or vacate a judgment or order if [there is]
‘a significant change either in factual conditions or
in law.'” Id. at 447 (quoting
Rufo, 502 U.S. at 384). The moving party “need
not show that a change in fact was both unforeseen and
unforeseeable.” Jackson, 880 F.3d at 1194
(citing Rufo, 502 U.S. at 385). However, the
foreseeability of the change in factual conditions is not
If it is clear that a party anticipated changing conditions
that would make performance of the decree more onerous but
nevertheless agreed to the decree, that party would have to
satisfy a heavy burden to convince a court that it agreed to
the decree in good faith, made a reasonable effort to comply
with the decree, and should be relieved of the undertaking
under Rule 60(b).
Rufo, 502 U.S. at 385. The burden is on the moving
party to establish the existence of changed circumstances and
show that they warrant relief. Horne, 557 U.S. at
447. Once it has met this burden, however, a district court
abuses its discretion in denying the Rule 60(b) motion.
60(b)(6), which permits the court to modify a final judgment
for “any other reason that justifies relief, ” is
“exclusive of the other enumerated subsections of Rule
60(b), ‘is even more difficult to attain[, ] and is
appropriate only when it offends justice to deny such
relief.'” Saggiani v. Strong, 718
Fed.Appx. 706, 712 (10th Cir. 2018) (unpublished) (quoting
Zurich N. Am. V. Matrix Serv., Inc., 426 F.3d 1281,
1293 (10th Cir. 2005)).
Rule 60(c) Timeliness
60(c) requires Rule 60(b) motions to be brought “within
a reasonable time.” Fed.R.Civ.P. 60(c)(1). There is no
explicit time limit applicable to motions under Rules
60(b)(5) and 60(b)(6). However, a party that delays filing a
Rule 60(b) motion “must offer sufficient justification
for the delay.” Myzer v. Bush, 2018 U.S. App.
2018 WL 4368189 at *3 (10th Cir. Sept. 13, 2018)
(unpublished) (quoting Cummings v. Gen. Motors
Corp., 365 F.3d 944, 955 (10th Cir. 2004)). Courts have
consistently held that lengthy, unjustified delays constitute
sufficient reason for denial of a Rule 60(b) motion. See
Thompson v. Workman, 372 Fed.Appx. 858, 861 (10th Cir.
2010) (unpublished) (unexplained eight-year delay in filing
Rule 60(b) motion was not reasonable); West v.
Champion, 363 Fed.Appx. 660, 664-65 (10th Cir. 2010)
(unpublished) (delay of more than eight years was not
reasonable where movant provided the court with no
justification for the delay); United States v.
Green, 318 Fed.Appx. 652, 654 (10th Cir. 2009)
(unpublished) (delay of almost seven years made Rule 60(b)(6)
motion untimely); Sorbo v. UPS, 432 F.3d 1169, 1177
(10th Cir. 2005) (upholding district court determination that