The opinion of the court was delivered by: Judge Caldwell
The pro se petitioner, Philip Martin Cooper, a federal prisoner, has filed a motion under Fed. R. Civ. P. 60(b)(1) and (3) for relief from our order of August 21, 2006, dismissing his petition under 28 U.S.C. § 2241. The petition sought the restoration of eighty-seven days of good-conduct time. We dismissed the petition after Cooper failed to submit a statement from an inmate witness. We will deny the Rule 60(b) motion because Petitioner has not shown excusable neglect on his part or misconduct by an adverse party.
Cooper filed his petition on August 19, 2004. The good- conduct time had been forfeited as part of his punishment in a disciplinary hearing on a charge that he had assaulted another inmate. Because of the loss of good-conduct time, Cooper was entitled to certain due-process protections. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Among those protections was the right to call witnesses at the hearing. We determined that Petitioner's case turned on the substance of the testimony that would have been allegedly offered on his behalf by Francis Walker, a fellow inmate transferred to another federal prison after the incident giving rise to the disciplinary charge. Cooper alleged he was refused the opportunity to call Walker on his behalf (as well as two other witnesses).
On October 4, 2005, we gave Cooper thirty days to submit Walker's statement. On October 18, 2005, Petitioner submitted a letter which we construed as a motion seeking reconsideration of the October 4 order. Petitioner argued that he was unable to obtain the statement in part because he and Walker were no longer confined at the same institution, Petitioner is forbidden from corresponding with an inmate at another institution, and Petitioner did not know Walker's registration number or his current place of confinement.
In an order dated October 20, 2005, we denied the motion, noting that a Bureau of Prisons Program Statement 5265.11 did permit correspondence between inmates in these circumstances and that he could "litigate any refusal to allow him to do so as part of [his habeas] proceedings." (Doc. 20, p. 4.) Discovery could include Walkers' location (id.), and the deadline was extended to January 20, 2006, for Petitioner to obtain Walker's statement and fifteen days thereafter to submit it to the court.
Petitioner was unable to obtain the statement and on January 20, 2006, filed a motion to extend the discovery deadline. He argued that prison officials improperly wanted to see the correspondence he intended to send Walker along with the draft of Walker's statement for Walker's signature. We rejected Petitioner's argument, but by order dated February 22, 2006, we extended discovery for another three months, until May 22, 2006, for Cooper to obtain the statement.
Petitioner did not comply with the order, so on June 27, 2006, we ordered him to comply or face dismissal of the petition. Our June 27 order was returned as undeliverable at USPLewisburg, and on July 3, 2006, after the Clerk of Court ascertained Petitioner's new address, it was re-sent to USP-Canaan. Cooper did not respond to the order, and on August 21, 2006, we dismissed his petition.
On May 3, 2007, about seven months later, Petitioner filed a motion, captioned "Writ of Petition to Motion." In this motion, Petitioner requested that the court reinstate his action due, in part, to discovery problems and because he could not comply with our orders, having had quadruple bypass surgery in 2006 and post-operative complications. On May 31, 2007, we denied the motion for the following reasons. First, as a motion under Fed. R. Civ. P. 59(e), it was untimely and we thus lacked jurisdiction to consider it. Second, as a motion under Rule 60(b), "Petitioner's grounds for reinstatement [were] not cognizable under that rule," noting that he had not said "when the operation was performed, nor [did] he provide any reason why he did not contact the court to request additional time when he knew he would be undergoing surgery." (Doc. 43, p. 3 n.1.)
On September 27, 2007, Petitioner filed the current Rule 60(b) motion.*fn1 Petitioner also sought to file a late notice of appeal but abandoned that attempt, concentrating on this motion instead.
Petitioner relies on Fed. R. Civ. P. ...