United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE.
Stephen Jones, proceeding pro se, has filed a Motion
for Court to Reinstate Plaintiff's Complaint, which the
Court has construed as a motion under Rule 60(b) for relief
from this Court's order of June 14, 2017 dismissing this
action for failure to prosecute under Federal Rule of Civil
Procedure Rule 41(b). For reasons that follow, the case will
Jones, an inmate in custody at MCI Norfolk, initiated this
civil rights action with another inmate [Nathan LeBaron] and
a non-profit corporation [Church of the Firstborn Kahal
Hab'Cor] against various prison medical and
administrative staff, and others, alleging the denial of
adequate drinking water. See Docket No. 1. It is
alleged that consumption of contaminated water conflicts with
plaintiffs' access to a religious diet as prescribed by
their Church and that the water treatment methods present a
health risk to Jones, who received a transplanted liver.
motion to proceed in forma pauperis was denied
pursuant to 28 U.S.C. § 1915(g) and the Church was
granted additional time for counsel to enter an appearance.
See Docket No. 8. Notwithstanding the fact that he
did not file a copy of his prison account statement,
Jones' motion to proceed in forma pauperis was
granted and the Court deferred the assessment of the filing
fee until the Court received a copy of Jones' certified
prison account statement. Id. At that time,
plaintiffs' emergency motion was denied and the Court
requested a Status Report regarding Jones' medications,
bunk assignment and access to distilled drinking water.
were issued for service of the four defendants identified in
the complaint. See Docket No. 9. Jones was advised
that that he may elect to have the United States Marshals
Service complete service on his behalf. See Docket
Nos. 8, 9-1.
timely status report was filed by DOC counsel, who entered a
limited appearance. See Docket Nos. 13, 14. The
Court denied Jones' subsequent motion for reconsideration
of the denial of the emergency motion. See Docket
No. 16. At that time, Jones was directed to submit a copy of
his prison account statement. Id.
5, 2017, the Clerk terminated Nathan LeBaron and CFB as
parties to this action. See Docket No. 16. Jones was
granted until May 31, 2017, to submit a certified copy of his
prison account statement, see 28 U.S.C. §§
1915(b)(1)-(2), for assessment and collection of filing fee
payments when funds exist. Id.
affidavit accompanying the motion to reopen, Jones avers,
among other things, that he became “very sick”
during the months of February and March and, on April 2,
2017, was transported by ambulance to Norwood Hospital.
See Docket No. 19-1. A week later, Jones was
transferred to UMass Medical Center for surgery on his right
lung. Id. Before returning to MCI Norfolk on May 18,
2017, he remained hospitalized at various placements
including the Lemuel Shattuck Hospital and the prison
infirmary at the Souza Baranowski Correctional Center.
Id. After bring brought to UMass Medical Center on
July 5, 2017, Jones was “cleared.” Id.
At that time, he received his legal mail, including the
Court's May 5, 2017 Order and the April 10, 2017 Status
Report. Id. Jones notes that the April 10, 2017
Status Report, see Docket No. 13-11, includes a copy
of his prison account statement. See Docket No. 19.
Motion for Court to Reinstate Plaintiff's
Court must liberally construe the motion because Jones is not
represented by an attorney. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Rodi v. Ventetuolo, 941
F.2d 22, 23 (1st Cir. 1991); see also Strahan v.
Coxe, 127 F.3d 155, 158 n. 1 (1st Cir. 1997) (noting
obligation to construe pro se pleadings liberally)
(citing Haines v. Kerner, 404 U.S. at 520)).
the Federal Rules of Civil Procedure do not expressly allow
for motions to reinstate, a litigant subject to an adverse
judgment, and who seeks reconsideration by the district court
of that adverse judgment, may file a motion under either Rule
59(e) (motion to alter or amend judgment) or Rule 60(b)
(relief from judgment). A motion to alter or amend the
judgment must be filed within twenty-eight days after the
judgment is entered. See Fed.R.Civ.P. 59(e). Rule
60(b) of the Federal Rules of Civil Procedure authorizes a
court to grant a party relief from a prior final judgment for
certain enumerated reasons. Rule 60(c)(1) provides a one year
limitation period “for reasons (1), (2) and (3) [of
Rule 60(b) ]” and there is no time limitation for a
motion brought under Rule 60(b)(6). Cotto v. United
States, 993 F.2d 274, 278 (1st Cir. 1993).
motion was signed on July 20, 2017 and filed with the Court
on July 26, 2017. Even if the court construed the filing
under the prison mailbox rule of Houston v. Lack,
487 U.S. 266, 276 (1988), the earliest the Court would find
the motion filed is July 20, 2017, which is more than a week
after the 28 day time limit under Rule 59(e). Twenty-eight
days after final judgment entered on June 14, 2017, would be