Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jacks v. Spencer

United States District Court, D. Massachusetts

January 9, 2017

JAMES JACKS, Plaintiff,
v.
LUIS SPENCER, THOMAS DICKHAUT, JAMES SABA, CAROL LAWTON and DENISE McDONOUGH, Defendants.

         MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION TO FILE NUNC PRO TUNC HIS NOTICE OF APPEAL AND TO FILE A RECONSIDERATION MOTION OF THE COURT'S MAY 6, 2016 ORDER ON DEFENDANTS' MOTION TO DISMISS (DOCKET ENTRY # 40); PLAINTIFF'S MOTION FOR RELEASE FROM JUDGMENT PURSUANT TO RULE 60(B)(1), (6) AND RECONSIDERATION RIGHTS OR ALTERNATIVELY TO NUNC PRO TUNC HIS RIGHTS TO APPEAL AND RECONSIDERATION [sic] MOTION (DOCKET ENTRY # 43)

          MARIANNE B. BOWLER United States Magistrate Judge.

         Pending before this court are: (1) the remaining portion of a nunc pro tunc motion filed by plaintiff James Jacks (“plaintiff”) that requests an opportunity to file a motion to reconsider a May 6, 2016 decision and “make appropriate filings nunc pro tunc” (Docket Entry # 40); and (2) a motion for release from judgment under Fed.R.Civ.P. 60(b)(1) and (6) (“Rule 60(b)”)[1] (Docket Entry # 43). Plaintiff, an inmate at the Souza-Baranowski Correctional Center in Shirley, Massachusetts (“SBCC”), filed the motions on June 27 and August 12, 2016, respectively, as explained in the November 21, 2016 Memorandum and Order. (Docket Entry # 46). The Memorandum and Order also construed the remaining portion of the nunc pro tunc motion as seeking relief under Rule 60(b). (Docket Entry # 46).

         As a basis for relief, petitioner attests by affidavit that he did not receive a September 30, 2015 Memorandum and Order and a March 16, 2016 Procedural Order[2] and belatedly received the May 6, 2016 decision on or about June 19, 2016. (Docket Entry ## 40-1, # 43-1). As stated in the first affidavit, plaintiff spoke with a “[m]ail officer” at SBCC, who informed him that “all legal mail goes to [the] Inner Parameter [sic] Officer to deliver and inspect for contraband and at times mail gets lost or delayed depending on the security of the prison at the time.” (Docket Entry # 40-1, ¶ 4). The September 30, 2015 Memorandum and Order denied plaintiff's summary judgment motion and the May 6, 2016 Memorandum and Order allowed defendants' summary judgment motion.

         Defendants Luis Spencer, Thomas Dickhaut, James Saba, Carol Lawton and Denise McDonough (“defendants”) did not file an opposition to either motion. On December 5, 2016 and in accordance with the November 2016 Memorandum and Order, they filed an affidavit. The affidavit explains, in detail, the process and procedure for handling incoming legal mail at SBCC.

         FACTUAL BACKGROUND

         The Inner Perimeter Security Unit (“IPS”) “is tasked with retrieving and distributing” all incoming legal mail to inmates at SBCC. The United States Postal Service initially delivers the incoming mail to an SBCC offsite mail room. Mail is then sorted and legal mail is separated from other incoming mail. On a daily basis, IPS collects the incoming legal mail from the mail room, takes it to a warehouse at SBCC and subjects it to a fluoroscope examination for contraband.

         “The legal mail is then delivered to the SBCC IPS Office where it is distributed to IPS officers for delivery that same day.” (Docket Entry # 48-1). More specifically, an IPS Officer delivers the legal mail to the inmate addressee and opens the mail in front of the inmate. If “the legal mail contains, or is suspected to contain, contraband, ” i.e., “illicit substances, ” the inmate is notified at that time and the legal mail is subject to an investigation. (Docket Entry # 48-1). The investigation takes place the same day at the SBCC IPS Office and, if deemed contraband, a disciplinary report is prepared and the mail “designated as evidence and processed accordingly.” (Docket Entry # 48-1). “If the legal mail in question is determined not to contain contraband, it is then delivered to the inmate.” (Docket Entry # 48-1).

         The entire process “generally takes no longer than 24” hours. (Docket Entry # 48-1). Notably, “It is extremely rare for legal mail to be lost or misplaced” at SBCC. (Docket Entry # 48-1).

         In affidavits, plaintiff states that he did not receive the March 16, 2016 Order and belatedly received the May 6, 2016 decision on or about June 19, 2016. (Docket Entry ## 40-1, 43-1). Petitioner filed an internal grievance on June 28, 2016 based on the delayed receipt of his legal mail. (Docket Entry # 40-1). He also swears that he did not receive the September 30, 2015 Memorandum and Order denying his summary judgment motion. (Docket Entry # 43-1).

         DISCUSSION

         Rule 60(b) gives the court “the power to ‘relieve a party . . . from a final judgment, order, or proceeding' for certain reasons, including ‘(1) mistake, inadvertence, surprise, or excusable neglect' and ‘(6) any other reason that justifies relief.'” Small J. LLC v. Xcentric Ventures LLC, 2015 WL 5737135, at *2 (D.Mass. Sept. 30, 2015) (quoting Rule 60(b)). For reasons fully explained in the November 2016 Memorandum and Order, this court has the authority to consider and deny the Rule 60(b) motion (Docket Entry # 43) notwithstanding the prior notice of appeal (Docket Entry # 42). (Docket Entry # 46, pp. 7-10).

         Examining all of the circumstances, plaintiff's reliance on Rule 60(b)(6) is misplaced. Rule 60(b)(1) potentially provides a basis for relief, see In re Cyphermint, Inc., 2011 WL 2417132, at *4 (D.Mass. June 10, 2011), and section 60(b)(6) “‘is appropriate only when none of the first five sections pertain.'” Ungar v. Palestine Liberation Org., 599 F.3d 79, 85 (1st Cir. 2010). Rule 60(b)(6) “‘may not be used as means to circumvent those five preceding sections.'” Id. In any event, First Circuit case law suggests that Rule 60(b)(6) requires the movant to be “faultless in the delay, ” Claremont Flock Corp. v. Alm, 281 F.3d 297, 299 (1st Cir. 2002), and petitioner is, at a minimum, partly to blame for the delay and missing the deadline to file additional evidence.

         With respect to Rule 60(b)(1), the determination “of what constitutes excusable neglect is an equitable determination, taking into account the entire facts and circumstances surrounding the party's omission, including factors such as the danger of prejudice to the non-movant, the length of the delay, the reason for the delay, and whether the movant acted in good faith.” Davila-Alvarez v. Escuela de Medicina Universidad C. delCaribe, 257 F.3d 58, 64 (1st Cir. 2001); see Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993). Furthermore, under the excusable neglect standard of Rule 60(b)(1), “the Court is permitted, ‘where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control.'” In re Cyphermint, Inc., 2011 WL 2417132, at *4 (quoting United States v. $23, 000 in U.S. Currency, 356 F.3d 157, 164 (1st Cir. 2004)). That said, “[d]emonstrating excusable neglect is a ‘demanding standard'” and this court has “‘wide discretion' in this arena.” Santos-Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016); see also Davila-Alvarez v. Escuela de Medicina Universidad C. del Caribe, 257 F.3d at 63 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.