Burk v. Elmore et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOHNNYLEE PRESTON BURK,
Plaintiff,
v.
THOMAS ELMORE, et al.,
Defendants.
Case No. 3:21-cv-00277-JMK
ORDER
Before the Court at Docket 19 is Mr. Burk’s Motion to Reconsider. Mr. Burk
alleges five grounds for reconsideration: (1) the Court overlooked the factual
importance of the delay caused by the United States Postal Service; (2) the
Government interfered in his legal proceedings via the United States Postal
Service; (3) his complaint properly stated a claim for relief; (4) he has exhausted
his attempts to attack his conviction in 3:15-cr-00088-SLG-DMS; and (5) the Court
mischaracterized his request for relief.1
Motions for reconsideration filed pursuant to Local Civil Rule 7.3(h) only
apply to non-dispositive court orders.2 Procedurally, such motions are limited to
five pages and must be filed within seven days of the Court’s order.3 Substantively,
the Court denies motions for reconsideration unless the movant demonstrates a
1 Docket 19 at 1—6.
2 Local Civil Rule 7.3(h).
3 Local Civil Rule 7.3(h)(2).
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(1) manifest error or law or fact; (2) discovery of new materials facts; or (3) an
intervening change of the law.4 Based on all of the above, Docket 19 does not
present proper grounds as a motion for reconsideration pursuant to Local Civil
Rule 7.3(h).
Even liberally construed, Docket 19 does not present grounds for
consideration under Federal Rule of Civil Procedure 59(e) or 60(b). Rule 59(e)
allows a district court to alter or amend a final judgment. Rule 59(e) provides that
a “motion to alter or amend a judgment must be filed no later than 28 days after
the entry of judgment.”5 The Rule “gives a district court the chance ‘to rectify its
own mistakes in the period immediately following’ its decision.”6 Rule 59(e) does
not prescribe specific grounds for a motion to amend or alter; thus, “the district
court enjoys considerable discretion in granting or denying the motion.”7 However,
relief under Rule 59(e) is granted in only “highly unusual circumstances,” because
amending a judgment after entry is “an extraordinary remedy to be used
sparingly[.]”8
Generally, there are four grounds for relief under Rule 59(e): (1) to correct
a court’s manifest error of law or fact; (2) to present “newly discovered or previously
unavailable evidence”; (3) to prevent “manifest injustice”; or (4) because of an
4 Local Civil Rule 7.3(h)(1).
5 Federal Rule Civil Procedure 59(e).
6 Banister v. Davis, 140 S. Ct. 1698, 1703 (2020) (quoting White v. New Hampshire Dep't
of Emp. Sec., 455 U.S. 445, 450 (1982)).
7 Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (quoting McDowell v.
Calderon, 197 F.3d 1253 n.1 (9th Cir. 1999)).
8 Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation omitted).
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“intervening change in controlling law.”9 A party should not be using Rule 59(e) to
present new arguments or evidence that could have been reasonably raised
earlier.10 Moreover, a party “must show more than a disagreement with the Court's
decision, and recapitulation of the cases and arguments considered by the court
before rendering its original decision[.]”11 While procedurally correct under Rule
59(e), Docket 19 does not contain arguments that merit altering or amending the
Final Judgment. The Court does not find adequate inferences to substantiate Mr.
Burk’s claims regarding the United States Postal Service. The Court does not find
these claims credible, especially in light of Mr. Burk’s purposeful absence of
reporting to the Court. Further, Mr. Burk reiterates his previous arguments that the
Court considered and denied in its Order at Docket 17 expresses his
dissatisfaction with the Court’s ruling.12
Alternatively, a federal district court may apply Rule 60(b) of Federal Civil
Procedure to reconsider a final judgment on either legal or factual grounds. Rule
60(b) permits a court to relieve a party from a final judgment for any of the following
reasons:
(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);
9 Allstate Ins. Co., 634 F.3d at 1111.
10 Id. at 1112.
11 Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 649 F. Supp.
2d 1063, 1070 (E.D. Cal. 2009) (citation and internal quotation omitted).
12 See generally Docket 19.
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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment 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.
Docket 19 fails to make any arguments, even liberally construed, that merit further
review under Rule 60(b).
Accordingly, the motion at Docket 19 is DENIED. Mr. Burk has 30 days from
the date of this order to timely file a Notice of Appeal.
IT IS SO ORDERED this 17th day of May, 2023 at Anchorage, Alaska.
/s/Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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