United States District Court, M.D. Pennsylvania
pending in this civil rights action filed pursuant to 42
U.S.C. § 1983 is a motion filed by Plaintiff Kelvin
Sutton seeking relief from the court's decision of April
8, 2016 pursuant to Fed.R.Civ.P. 60(b)(3) and (6). (Doc.
139). For the reasons that follow, the motion will be denied.
April 8, 2016, the court issued a Memorandum and Order in the
above matter addressing a motion for summary judgment filed
by the only remaining defendant in this action, Nelson
Iannuzzi, CRNP. The motion was granted (Docs. 137, 139) and
Plaintiff now seeks relief from that judgment. The relevant
background is as follows. Two claims remained in this action
against Defendant Iannuzzi. Both of these claims survived a
motion to dismiss. Plaintiff asserts that on August 26, 2009,
he attended a medical appointment at SCI-Mahanoy to exchange
and receive new arch support insoles. While there, he states
that Iannuzzi entered the room, questioned him as to who
authorized the order for the new insoles, and told him that
he did not believe his current insoles were worn out.
Iannuzzi told Plaintiff he would have to wear the current
insoles until new ones were authorized. The second claim
arose on August 28, 2009, when Iannuzzi is alleged to have
had a nurse confiscate and destroy Plaintiff's prescribed
insoles. According to Plaintiff, he was informed by the nurse
that Iannuzzi had discontinued the use of insoles.
filed a motion for summary judgment with respect to the
remaining claims against him. Plaintiff alleged that Iannuzzi
was both deliberately indifferent and negligent. A Memorandum
and Order were issued by the court on April 8, 2016, wherein
the court found that the undisputed record supported
Iannuzzi's motion for summary judgment on both the
deliberate indifference and negligence claims. A review of
said Memorandum sets forth all of the undisputed facts and
the court's reasoning for the decision reached.
has filed a motion under Fed.R.Civ.P. 60(b) which addresses
the grounds for relief from a final judgment, order, or
proceeding. In particular, Plaintiff relies on subsections
(3) and (6). Fed.R.Civ.P. 60(b)(3) allows relief where fraud
has occurred. Fed.R.Civ.P. 60(b)(6) allows relief under Rule
60 for “any other reason that justifies relief”
that is not set forth in the Rule. It acts as a
“catch-all” provision. Plaintiff alleges that a
fraud occurred in this case because Defendant engaged in
“Tricknology.” (Doc. 139 at 1.) According to
Plaintiff, Defendant Iannuzzi overrode a written order of Dr.
Gustitus for arch support insoles and improperly had the
insoles later confiscated and destroyed. Plaintiff claims
that Defendant omitted facts from his motion, and persuaded
the court with self-serving affidavits and statements.
(Id. at 2.) Plaintiff states that K. Paul Flanigan
may be a podiatry expert, but that he never examined him and
should not have been permitted to submit a position in this
case. Plaintiff further contests the fact that Flanigan was
not from Pennsylvania. The majority of Plaintiff's motion
is devoted to rearguing the case and disagreeing with both
Defendant and the findings of the court.
states in his motion that Defendant only discontinued part of
Gustitus' order, but failed to mention this fact.
According to Plaintiff, this amounts to fraud. He further
maintains that the confiscated insoles had an expiration date
of July 10, 2009, and that Gustitus actually confirmed on
August 12, 2009 that Plaintiff had plantar facsiitis when he
wrote this in his consultation record. He refers the court to
Part B of Exhibit A, which he attaches to his motion.
Plaintiff also disputes that he had other health care devices
in place on the date the insoles were confiscated.
(Id. at 3.)
motion for relief, Plaintiff claims that Defendant covered up
his “bad acts” by creating his own paper
trail/progress note entries. (Id.) According to
Plaintiff, Defendant was not suppose to be there when he
picked up his replacement insoles and had never been present
in the past when he arrived to do so. Also submitted for the
court's review is Exhibit F, a handwritten copy from
Plaintiff's medical record of an item receipt dated
10/1/08. Plaintiff states that this document represents a six
(6) month order for insoles not to expire until 3/18/09.
also points out that although he was originally diagnosed
with plantar fasciitis on August 4, 1999, by Dr. Kathleen
Richard, Podiatrist (Exhibit G, Part B), that neither the
Defendant nor Dr. Flanigan pointed this out in the undisputed
facts. As far as the Certificate of Merit, it is
Plaintiff's position that he was tricked into filing what
he did and stating that he did not require expert testimony.
(Id. at 4.) He claims that he has made mistakes and
is unlettered in the law, but blames Defendant and his lack
of training in the orthopedic/podiatric field.
Motion for Relief from Judgment Standard
motion for reargument/reconsideration may be filed pursuant
to Federal Rule of Civil Procedure 59(e) or Federal Rule of
Civil Procedure 60(b). A motion for reconsideration filed
pursuant to Rule 60(b) “allows a party to seek relief
from a final judgment, and request reopening of his case,
under a limited set of circumstances including fraud,
mistake, and newly discovered evidence.” Gonzalez
v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b) provides
grounds for relief from a judgment, an order, or other part
of the record. Specifically, in order to prevail on a Rule
60(b) motion, the moving party must establish mistake,
inadvertence, surprise or excusable neglect; newly discovered
evidence; fraud or other misconduct; that the judgment is
void; that the judgment was satisfied; or any other reason
that justifies relief. Fed.R.Civ.P. 60(b)(10-(6); see
also Frazier v. City of Philadelphia, No. 14-0756,
2015 WL 1383100 (E.D. Pa. Mar. 24, 2015); Hardwick v.
Warden, Civ. No. 12-1254, 2016 WL 4265727, at *1 (D.
Del. Aug. 8, 2016).
the court is mindful of its obligation to construe a pro
se litigant's pleadings liberally, Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011);
Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 184 n. 1 (3d Cir. 2009); Haines v. Kerner,
404 U.S. 519, 520-21 (1972), Rule 60(b) motions are left to
the sound discretion of the trial court, consistent with
accepted legal principles applied in light of all relevant
circumstances. Pierce Assoc. Inc. v. Nemours Found,
865 F.2d 530, 548 (3d Cir. 1988); see also Hardwick,
2016 WL 4265727 at *1.
motion must be “made within a reasonable time”
and if the motion is based on reasons (1), (2), or (3), then
“no more than a year after the entry of the
judgment.” Fed.R.Civ.P. 60(c). Moreover, the
“party moving under Rule 60(b) for relief from a
judgment or order must clearly establish the grounds therefor
to the satisfaction of the district court.” Talley
v. City of Atlantic City, 2007 WL 2021792 at *3 (D.N.J.
Jul. 10, 2007); see also Federal Deposit Ins. Corp. v.
Alker, 234 F.2d 113, 116-17 (3d Cir. 1956). Relief from
a judgment under Rule 60 should be granted only in
extraordinary circumstances, and a Rule 60(b) motion is not
appropriate to reargue issues that the court has already
considered and decided. Brambles USA Inc. v.
Blocker, 735 F.Supp. 1239, 1240 (D. Del. 1990). It is
also well recognized that motions under Rule 60(b) “may
not generally substitute for an appeal.” Harris v.
Martin, 834 F.2d 361, 364 (3d Cir. 1987) (citing
Marshall v. Bd. of Education of Bergenfield, NJ, 575
F.2d 417, 424 (3d Cir. 1978)); see also Boughner v.
Sec'y of Health, Educ. & Welfare, 572 F.2d 976,
977 (3d Cir. 1978). Relief under Rule 60(b) is available only
under such circumstances that the “‘overriding
interest in the finality and repose of judgments may properly
be overcome.'” Martinez-McBean v. Gov't of
the Virgin Islands, 562 F.2d 908, 913 (3d Cir.
1977)(quoting Mayberry v. Maroney, 558 F.2d 1159,
1164 (3d Cir. 1977)).
instant case, it is clear that Plaintiff is moving for relief
pursuant to Rule 60(b). Not only does he cite to Rule 60(b),
but he lists the specific sections under which he files his
motion and attempts to cite instances which meet those
sections. In particular, Plaintiff specifically seeks relief
under Rule 60(b)(3) claiming fraud due to “tricknology
and by design on the part of Defendant.” (Doc. 139 at
1.) He also argues that he is entitled to relief based upon
the catch-all provision of the Rule -subsection (6) - that
allows relief under Rule 60(b) for “any other reason
that justifies relief.” Because Plaintiff moves for
Rule 60(b) relief after the entry of summary judgment against
him, his case is sufficiently “final” for the
purpose of moving for relief under Rule 60(b). Moreover, the
summary judgment order he challenges was entered on April 8,
2016, and he filed the instant motion on May 10, 2016, so it
is clearly timely. The court rejects any notion by Defendant
that the motion should be deemed withdrawn for failure to
file a supporting brief. Plaintiff's motion is textual
enough to be construed ...