CHARLES A. SHAW, District Judge.
This closed prisoner civil rights matter is before the Court on pro se plaintiff Lawrence Martin Edwards' "Plaintiff's Request for Court Order That Missouri Attorney General's Office & Department of Corrections Be Required to Pay Him From Their Legal Expense Fund" (Doc. 356), and "Memorandum in Support For Accurate Information, Identification of Tamoshanter Nicols-Cobb a.k.a. Tamara Cobbs & Motion For Reopening of Complaint" (Doc. 344). The Court ordered non-parties the Missouri Attorney General's Office ("AG's Office") and Missouri Department of Corrections ("MDOC") to respond to these motions and they are now fully briefed.
For the following reasons, plaintiff's motion to order the AG's Office and MDOC to pay plaintiff's default judgment from the Legal Expense Fund will be denied. Plaintiff's motion to reopen his complaint and for other relief will be denied.
The factual and procedural background of this action was set out in detail in the Memorandum and Order of January 26, 2017 (Doc. 342 at 1-7) (the "Order"), and that discussion is incorporated herein by reference. The Order was issued after plaintiff filed a motion seeking a debtor's examination of Tamoshanter Cobb, and to issue a writ of execution to non-party the MDOC and/or its insurer, in a further effort to collect the default judgment plaintiff obtained in 2008 against defendant Tamara Cobbs.
As explained in the Order, the Court on its own review of the file became concerned that there may have been two different former MDOC employees: Tamara Cobbs, the defendant named in plaintiff's complaint, and Tamoshanter D. Cobb, who worked at Southeast Correctional Center ("SECC") at the time of the events alleged in plaintiff's Amended Complaint. The Court stated its concern that if Tamara Cobbs and Tamoshanter D. Cobb were two different people, it was unsure which one was the "Tamara Cobbs" who was served with summons and complaint by the U.S. Marshal's Service in August 2007. Order at 7-8.
To resolve its concern, the Court ordered the MDOC to provide information to answer three questions: (1) Were there two different persons employed by the MDOC, one named Tamara Cobbs who left the MDOC's employment in 2001, and one named Tamoshanter D. Cobb who worked at SECC in 2005; (2) what address did the MDOC provide to the Court in camera and under seal in June 2007 as the address of named defendant Tamara Cobbs; and (3) was the address provided to the Court in late June 2007 the last known address of Tamara Cobbs, or Tamoshanter D. Cobb?
In response to the Order and the subsequent Memorandum and Order of March 23, 2017 (Doc. 349), the MDOC filed affidavits of Assistant Attorney General Deborah Bell Yates, MDOC Legal Counsel Jay Boresi, and MDOC Human Resources Director Matthew Briesacher, that sought to answer the Court's questions and described the steps each affiant undertook.
Most significantly, a document bearing the caption of this case and titled "Addresses Filed Under Seal" was filed as Exhibit 1 to Ms. Bell Yates' Affidavit. (Doc. 351, Ex. 1.) Ms. Bell Yates averred that in response to the Court's orders, she requested the AG's Office entire archived closed litigation file of this case, and stated that Exhibit 1 "is the document we believe was submitted to the Court under seal pursuant to the Court's order of June 26, 2007. This document lists the last known address for `Tamoshanter Cobbs' at that time. No signed copy of this exhibit can be located." Bell Yates Aff. at 2, ¶¶ 3, 7, Ex. 1 (Doc. 351).
Exhibit 1 bears a signature block for then-Missouri Attorney General Jeremiah W. (Jay) Nixon, by then-Assistant Missouri Attorney General Joshua N. Worthington, but the document is not signed.
The Court accepts that Exhibit 1 is a copy of the document filed by the MDOC in June 2007 in response to Judge Buckles' order. Exhibit 1 answers the Court's second and third questions listed above. Specifically, Exhibit 1 establishes the Sikeston, Missouri address that the MDOC provided to the Court in July 2007 as the address of named defendant Tamara Cobbs, which the Court in turn provided to the U.S. Marshal for service. Second, Exhibit 1 establishes that the MDOC knew in June 2007, and informed the Court, that defendant Tamara Cobbs' name was actually Tamoshanter D. Cobb and plaintiff had misnamed her in the Amended Complaint.
Consequently, the Court finds that the address the MDOC provided in June 2007 for service on defendant Tamara Cobbs was in fact the last known address of Tamoshanter D. Cobb, sued as Tamara Cobbs.
Plaintiff moves that the AG's Office and MDOC be required to pay out of the State Legal Expense Fund (the "Fund") the $1,000 default judgment he obtained against Tamara Cobbs in 2008. Plaintiff asserts that he is entitled to payment from Fund because the State of Missouri was required to defend Cobbs in this action, and must pay out of the Fund for judgments against state employee defendants who were sued for actions taken in the course of their duties, as was Cobbs.
The State Legal Expense Fund was created by statute and codified in Sections 105.711 to 105.726 of the Revised Statues of Missouri. The assets in the Fund
There are statutory prerequisites to payment of claims from the Fund.
2. All persons and entities protected by the state legal expense fund shall cooperate with the attorneys conducting any investigation and preparing any defense under the provisions of sections 105.711 to 105.726 by assisting such attorneys in all respects, including the making of settlements, the securing and giving of evidence, and the attending and obtaining witness to attend hearings and trials. Funds in the state legal expense fund shall not be used to pay claims and judgments against those persons and entities who do not cooperate as required by this subsection.
105.716, Mo. Rev. Stat. (2000) (italics added).
Missouri courts have held that "[t]he failure of a defendant to tender defense to the Attorney General and to cooperate with the Attorney General in his defense prevents payment from the Fund."
Here, plaintiff has not offered any facts showing the elements necessary for payment from the Fund.
Any liability of the Fund is premised on the cooperation of the state employee.
Plaintiff's motion also asks for judgment against the AG's Office and MDOC in the amount of $20,000, representing "the costs [he] expended and a sum representing the effort value, frustrates [sic] he has to undergo for ten (10) years attempting to collect the default judgment" and for "deliberately deceiving/lying to the Court." (Doc. 356 at 3.) Plaintiff alleges that former MDOC Director Lombardi "committed outright perjury, which shows malicious intent, and intentional cover-up and institutional misconduct." (
Plaintiff moves that he be allowed to reopen this case and amend his complaint to file a retaliation claim and retaliatory discipline and deliberate indifference claim against defendants Cobb and Tori Green,
In his Reply memorandum, plaintiff asserts that documents he obtained in a separate lawsuit,
Plaintiff's Reply also asserts that Lombardi committed "fraud" based on Lombardi's submission of the Affidavit of January 31, 2012 "providing plaintiff with erroneous information regarding Tamara Cobb was intentional, deceptive, malicious and willful." Reply at 7. Plaintiff seeks sanctions against "the defendants"—presumably plaintiff intends to refer to non-parties the AG's Office and MDOC—"for their intentional, deceptive, and malicious conduct, in the amount of $20,000 in punitive damages, in failing to provide plaintiff with the proper name and credentials of Defendant Cobb initially, which caused Plaintiff unreasonable, undue delay in collecting his $1,000 dollars, as well as sabotaging his lawsuit against Defendants Green and Cobb." Reply at 9-10.
Finally, plaintiff's Reply asserts that Tamoshanter Cobb destroyed his grievance appeal against defendant Tori Green in order to have his case dismissed. Plaintiff's Affidavit states in pertinent part that another MDOC inmate, Terrance Sharon, who has a child with Tamoshanter Cobb, told plaintiff that Cobb said she took plaintiff's grievance appeal from his ad-seg room, gave it to Green, and the two of them read and then destroyed it. (Doc. 357 at 1-2.) Plaintiff describes Sharon's statement as newly discovered evidence that would permit the reopening of this case. Among other things, plaintiff's Reply asks the Court to "launch a full-scale investigation of the MDOC cover-up regarding his complaint, seek the release of the file for the investigation conducted beginning March 2005 where plaintiff was `forced into a sexual relationship with former CO Tori Green [in] the name of justice." Reply at 2.
Plaintiff's motion to amend his complaint to file additional claims against Cobb and Tori Green will be denied. On January 25, 2008, the Court granted defendant Green's motion to dismiss, construed as a motion for summary judgment, for failure to exhaust administrative remedies.
This case was closed and final judgment was entered in October 2008 when the Court entered default judgment in plaintiff's favor against Cobbs, having previously dismissed plaintiff's claims against the other defendants. "Once a final judgment has been entered, the district court lacks power to rule on a motion to amend unless the party seeking leave first obtains relief under Rule 59(e) or 60." 3 James Wm. Moore, et al.,
Although plaintiff has filed a motion to reopen or to amend his complaint, such relief is not possible unless he first obtains relief by vacating the judgment under Rule 59(e) or Rule 60(b).
Federal Rule of Civil Procedure 60(b) relieves a party from a final judgment or order on one of six specified grounds: Mistake, inadvertence, surprise, or excusable neglect, Fed. R. Civ. P. 60(b)(1); newly discovered evidence that with reasonable diligence could not have been discovered in time for a Rule 59(b) motion, Fed. R. Civ. P. 60(b)(2); fraud, misrepresentation or misconduct by an opposing party, Fed. R. Civ. P. 60(b)(3); the judgment is void, Fed. R. Civ. P. 60(b)(4); 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, Fed. R. Civ. P. 60(b)(5); and any other reason that justifies relief, Fed. R. Civ. P. 60(b)(6). Rule 60(b) motions are viewed with disfavor and are addressed to the Court's discretion.
Plaintiff's motion alleges that newly discovered evidence warrants the reopening of his case to assert claims against Cobb and Green. Specifically, plaintiff's Affidavit describes hearsay statements by inmate Terrance Sharon that Cobb and Green took and destroyed plaintiff's grievance appeal document, which led to the dismissal of plaintiff's claims against Green for failure to exhaust administrative remedies. This allegation invokes Rule 60(b)(2), newly discovered evidence. Even if the Court could consider the hearsay statements contained in plaintiff's Affidavit, his motion is untimely. Motions under Rule 60(b) are to be made "within a reasonable time,"and those under subdivisions (1) through (3) must be made "no more than a year after entry of the judgment or order or the date of the proceeding." Rule 60(c)(1), Fed. R. Civ. P. Plaintiff's motion was filed almost nine years after entry of the final judgment and therefore will be denied.
Plaintiff's motion will also be denied as to non-party former MDOC Director George Lombardi. Plaintiff cannot seek to vacate the judgment under Rule 60(b)(3) on the basis of fraud with respect to Mr. Lombardi, as Lombardi was never a party to this action. Plaintiff has not shown that the judgment can otherwise be vacated, as discussed above. Moreover, even if there were a basis to vacate the judgment, plaintiff could not amend his complaint and bring claims against Mr. Lombardi in this action, because an amended complaint must relate back to the original complaint to avoid the statute of limitations bar.
Plaintiff's motion for monetary sanctions or damages of $20,000 against Lombardi, the MDOC and AG's Office for the alleged frustration of plaintiff's attempt to collect the default judgment against Cobbs, and for "an extra $5,000 for fraud and perjury, and Plaintiff's inability to bring assault charges, harassment charges against defendant Cobb" will also be denied. To the extent plaintiff seeks damages, he cannot obtain damages from persons and entities that are not parties to this case. Plaintiff cannot amend his complaint to assert claims against these non-parties because, as discussed above, he has not shown a basis to vacate the judgment in this case; further, plaintiff could not amend his complaint to assert such claims in this action because they do not arise out of the conduct, transactions, or occurrences set forth in plaintiff's Amended Complaint.
To the extent plaintiff seeks the imposition of sanctions, he has not indicated any procedural basis of a claim for sanctions against the non-parties. More importantly, the Court finds plaintiff has not established that any of the non-parties did anything that interfered with plaintiff's efforts to prosecute his case or collect the judgment. The Court interprets plaintiff's motion as being primarily based on the failure to pay his default judgment against Tamara Cobbs from the State Legal Expense Fund. As discussed above in part A., plaintiff cannot collect his judgment-or obtain return of the filing fee-from the Fund. To the extent plaintiff seeks sanctions based on the Lombardi Affidavit's statements in 2012 about a possible MDOC employee named Tamara Cobbs-who, as the Court has repeatedly observed, is the person plaintiff named as a defendant in this action, obtained a judgment against, and requested post-judgment discovery concerning
In 2012, plaintiff sought sanctions of $5,000 against the MDOC's counsel based on these same issues concerning post-judgment discovery related to collection of his judgment,
Mem. and Order of Mar. 30, 2012 at 1-2 (Doc. 336). Plaintiff's current motion for sanctions is entirely meritless as well.
Although issues concerning the identity of misnamed defendant Tamara Cobbs/Tamoshanter D. Cobb caused confusion on the undersigned's part-as has been discussed at length above and in prior orders in this case-plaintiff has not established how this was the non-parties' fault, how it kept him from attempting to collect his judgment, or how it was sanctionable activity. Further, contrary to plaintiff's assertion, the AG's Office and MDOC had no duty to inform him that he sued Tamoshanter D. Cobb by the wrong name.
Finally, plaintiff's request that the Court "launch a full scale investigation of the MDOC cover-up regarding his complaint" and permit him to join parties and raise new claims in this case will be denied. Plaintiff's allegations are entirely outside the scope of the pleadings in this closed case, as they do not assert claims that arise out of the same transaction or occurrence or present common questions of law or fact with the factual allegations of the Amended Complaint.
Plaintiff's motion for damages or sanctions will be denied in all respects.
For the foregoing reasons, "Plaintiff's Request for Court Order That Missouri Attorney General's Office & Department of Corrections Be Required to Pay Him From Their Legal Expense Fund," filed May 10, 2017 (Doc. 356), and "Memorandum in Support For Accurate Information, Identification of Tamoshanter Nicols-Cobb a.k.a. Tamara Cobbs & Motion For Reopening of Complaint" will be denied in all respects.
Plaintiff is reminded that he cannot use this Court's post-judgment procedures or the services of the United States Marshal's Service in the Eastern District of Missouri to attempt to collect his default judgment in any State other than Missouri. If the judgment debtor lives in or has assets in any other State, plaintiff must attempt to collect the judgment there.
Accordingly,
