Gomez v. State of South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DANIEL JOSE GOMEZ, 4:20-CV-04151-RAL
Plaintiff,
vs.
ORDER DENYING PLAINTIFF'S
MISCELLANEOUS MOTIONS
MINNEHAHA COUNTY STATES
ATTORNEYS OFFICE,
Defendant.
Plaintiff Daniel Jose Gomez filed a pro se lawsuit under 42 U.S.C. § 1983. Doc. 1. This
Court granted Gomez leave to proeeed in forma pauperis. Doc. 8. This Court directed service of
Gomez's complaint on Defendant. Gomez now has several motions pending before this Court.
Docs. 16, 27, 28.
I. Motion to Re-Open
Gomez seeks to re-open a previous lawsuit, Gomez v. Davis et al.. 4:09-CV-04142-LLP,
under Federal Rule of Civil Procedure Rule 60(b). Doc. 27. Gomez claims his complaint in that
§ 1983 case filed in 2009 was dismissed prematurely. Doc. 27 at 1. Gomez's § 1983 lawsuit
was based on an alleged unconstitutional arrest. Gomez v. Davis et al.. 4:09-CV-04142-
LLP, Doc. 32 at 2. The Court dismissed his complaint as premature under Heek v. Humphrey.
512 U.S.477(1994), because Gomez failed to show that a state or federal habeas petition
declared or reversed his underlying conviction as unconstitutional. Gomez v. Davis et al.. 4:09-
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CV-04142-LLP, Doc. 32 at 2. Judgment was entered against Gomez on December 22, 2009.
Gomez.4:09-CV-04142-LLP, Doc. 33.
Rule 60(b) authorizes a court to relieve a party from a final judgment under the following
circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b);(3)fraud(whether previously called
Intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;(4)
thejudgment is void;(5)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; or(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Gomez cites to Rule 60(b)(1), but does not offer any explanation as to
why he should be relieved from a final judgment based on excusable neglect. Doc. 27.
After review of his motion, the only conceivable ground for relieffrom the final judgment is for
"any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). To obtain relief under Rule
60(b)(6), a party must show that "exceptional circumstances . .. denied the moving party a full
and fair opportunity to litigate his claim and have prevented the moving party from receiving
adequate redress." Harlev v. Zoesch. 413 F.3d 866, 871 (8th Cir. 2005)(citation omitted).
Gomez has made no such showing.
Additionally, a Rule 60(b) motion "must be made within a reasonable time." Fed. R. Civ.
P. 60(c)(1). "What constitutes a reasonable time is dependent on the particular facts of the case
in question and is reviewed for abuse of discretion." Middleton v. McDonald. 388 F.3d 614, 617
(8th Cir. 2004)(cleaned up and citation omitted). The Eighth Circuit has found a three-year
delay in making a Rule 60(b) motion to be unreasonable. Id.: see also Nucor Corp. v. Neb. Pub.
Power Dist.. 999 F.2d 372, 374-75 (8th Cir. 1993)(holding that a three and one-half year delay
was unreasonable). Here, Gomez challenges a final judgment filed in 2009. He brings his
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motion over eleven years after the Judgment entered. Gomez's delay is unreasonable and his
motion to re-open is denied.
II. Motion in Limine
Gomez moves to prohibit Defendant from introducing evidence of his prior criminal
record. Doc. 28. At this time, Gomez's lawsuit is still in the discovery stage and his motion in
limine is premature. If Gomez's lawsuit is scheduled for trial, he may raise this motion at that
time. Gomez's motion, Doc. 28, is denied at this time,
in. Motion for Summary Judgment
Gomez's motion for summary judgment. Doc. 16, is denied for the following reasons.
First, Gomez has not complied with Federal Rule of Civil Procedure 56(c). Rule 56(c) requires a
moving party to support factual assertions by "citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations ..., admissions, interrogatory answers, or other materials." Fed. R. Civ. P.
56(c)(1)(A). The movant bears "the initial responsibility of informing the district court of the
basis for its motion and identifying those portions of the record which show lack of a genuine
issue." Hartnaeel v. Norman.953 F.2d 394, 395 (8th Cir. 1992). Here, Gomez does not support
his factual assertions by citing to materials in the record, and thus failed to identify portions of
the record that lack a genuine issue. Doc. 20.
Second, Gomez has not complied with this Court's Civil Local Rules. "The application
of local rules is a matter peculiarly within the district court's province." Chrvsler Credit Corp. v.
Cathev. 977 F.2d 447,449(8th Cir. 1992)(cleaned up and citation omitted); Reasonover v. St.
Louis Cntv.. 447 F.3d 569, 579 (8th Cir. 2006)("District courts have broad discretion to ...
enforce local rules."). Although pro se pleadings are to be construed liberally, pro se litigants are
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not excused from compliance with procedural and local rules. Zieeler v. Norton. No. Civ. 04-
4098, 2006 WL 571866, at *1 (D.S.D. Mar. 6, 2006). Local Rule 56.1(A) states that a motion
for summary judgment"must be accompanied by a separate, short, and concise statement of
material facts as to which the moving party contends there is no genuine issue to be tried. Each
material fact must be presented in a separate numbered statement with an appropriate citation to
the record in the case." D.S.D. Civ. LR 56.1(A). Here, Gomez filed a separate and concise
statement of material facts, Doc. 20, but his facts do not cite to the record. He merely restates
factual allegations made in his complaint.
Finally, Gomez's motion for summary judgment is premature. "The general rule is that
summary judgment is appropriate 'only after the nonmovant has had time for discovery.'"
Jackson v. Riebold. 815 F.3d 1114, 1121 (8th Cir. 2016) Cquoting Toben v. Brideestone Retail
Operations. LLC. 751 F.3d 888, 894(8th Cir. 2014)). Here, Defendant filed an answer on
December 31, 2020. Doc. 12. Four days after Defendant filed an answer, Gomez filed a motion
for summary judgment prior to any realistic opportunity for discovery. Doc. 16. For the reasons
stated above, Gomez's motion for summary judgment. Doc. 16, is denied.
IV. Order
Accordingly, it is
ORDERED that Gomez's motion to re-open. Doc. 27, is denied. If is further
ORDERED that Gomez's motion in limine. Doc. 28, is denied at this time, but may be
refiled if and when a trial date is set. It is finally
ORDERED that Gomez's motion for summary judgment, Doc. 16, is denied at this time.
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DATED April 13 ,2021.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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