How later opinions annotate it (1 example)
- outright
Wallace v. McManus, 776 F.2d 915, 917 (10th Cir. 1985), superseded by rule, Fed.
— Washington v. Ryan, 833 F.3d 1087 (9th Cir. 2016)
At page 917 Determining excusable neglect for failure to appear15 citing cases“the federal rules should not be applied to penalize an uncounselled incarcerated civil rights plaintiff for a clerical error that was none of her doing and of which she had no knowledge.”
- Cash v. Durant, City of, No. 6:22-cv-00009 (E.D. Okla. Oct. 18, 2022). While Plaintiff’s Motion does not set forth any of the exceptional circumstances warranting relief under Rule 60(b), the Court construes the Motion as seeking relief under Rule 60(b)(1), which permits the court to relieve a party from a fi…
- Washington v. Ryan, 833 F.3d 1087 (9th Cir. 2016).published In re Stein, 197 F.3d 421, 423, 426 (9th Cir. 1999) (explaining that our case law allowing Rule 60(b) relief to retrigger appeal rights was rendered “obsolete and inapplicable” to lack-of-notice cases “by the 1991 addition of 4 See, e.g.,…
- United States v. Brown, 179 F.R.D. 323 (D. Kan. 1998).publishedSee, e.g., Lewis v. Alexander, 987 F.2d 392 , 396-97 (6th Cir.1993); Harnish v. Manatee County, Fla., 783 F.2d 1535, 1538 (11th Cir. 1986); Wallace v. McManus, 776 F.2d 915, 917 (10th Cir.1985); Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir.…
- Cashner v. Freedom Stores, Inc., 98 F.3d 572 (10th Cir. 1996).publishedWallace v. McManus, 776 F.2d 915, 917 (10th Cir.1985) (per curiam) (finding “excusable neglect” under Rule 60(b) when a pro se prisoner let an appeal deadline lapse after notice of the entry of judgment was sent to her former attorney rath…
- Douglas S. Lewis v. George Alexander, 987 F.2d 392 (6th Cir. 1993).publishedSee Hough v. Local 134, 867 F.2d 1018, 1022 (7th Cir.1989); Kaercher v. Trustees of Health & Hosp. of Boston, 834 F.2d 31, 34 (1st Cir.1987); Burkett v. Cunningham, 826 F.2d 1208, 1216-17 (3d Cir.1987); Harnish v. Manatee County, 783 F.2d…
- Carlson v. Carlson, 836 P.2d 297 (Wyo. 1992).published(uncounselled plaintiff should not be penalized for a clerical error that was none of her doing)
- United States v. Smedley, 129 F.R.D. 473 (S.D.N.Y. 1990).publishedSee, e.g., Burkett v. Cunningham, 826 F.2d 1208, 1216-17 (3d Cir.1987); Harnish v. Manatee County, 783 F.2d 1535, 1538 (11th Cir.1986); Wallace v. McManus, 776 F.2d 915, 917 (10th Cir.1985) (per curiam); Mennen Co. v. Gillette Co., 719 F.2…
- United States v. Unal Bakak, 857 F.2d 1469 (4th Cir. 1988).unpublished(pro se plaintiff was entitled to relief from judgment on ground of excusable neglect where notice of entry of judgment was sent to former attorney instead of plaintiff)
- Wayne Paul Burkett v. Richard Cunningham, 826 F.2d 1208 (3d Cir. 1987).published(pro se litigant)
- Johnson v. Spencer, 950 F.3d 680 (10th Cir. 2020).publishedSee Wallace v. McManus, 776 F.2d 915, 917 (10th Cir. 38 1985) (per curiam), superseded by rule, FED .
Show 5 more citing cases
- Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000).publishedSee Wallace v. McManus, 776 F.2d 915, 917 (10th Cir.1985).
- Vasquez v. Neal, No. 98-1447 (10th Cir. June 2, 1999).unpublishedSee Wallace v. McManus , 776 F.2d 915, 917 (10th Cir. 1985). -10- Because “[w]e review . . . the disposition of Rule 60(b) motions for an abuse of discretion,” Woodworker’s Supply, Inc. v. Principal Mut.
- Luigi & Iole B. Puccini Testamentary Trust v. John R. Gardner, 16 F.3d 416 (10th Cir. 1993).publishedSee Wallace v. McManus, 776 F.2d 915, 917 (10th Cir.1985).
- Renaldo J. Gamble v. United States, 989 F.2d 507 (10th Cir. 1993).publishedSenjuro v. Murray, 943 F.2d 36, 38 (10th Cir.1991); see Wallace v. McManus, 776 F.2d 915, 917 (10th Cir.1985); Rodgers v. Watt, 722 F.2d 456, 458-59 (9th Cir.1983) (en banc).
- Music Deli & Groceries, Inc. v. Internal Revenue Serv., 781 F. Supp. 992 (S.D.N.Y. 1991).publishedSee also Wallace v. McManus, 776 F.2d 915, 917 (10th Cir.1985); cf. James v. United States, 459 U.S. 1044, 1046-47 , 103 S.Ct. 465, 466-67 , 74 L.Ed.2d 615 (1982) (Brennan, J., respecting the denial of the petition for writ of certiorari).
At page 916 Liberal construction of pro se prisoner pleadings8 citing casesPro se pleadings by prisoners must be liberally construed [ ] without regard for technicalities.
- Cash v. Durant, City of, No. 6:22-cv-00009 (E.D. Okla. Oct. 18, 2022). (Pro se pleadings by prisoners must be liberally construed [ ] without regard for technicalities.)
- State ex rel. Sec'y v. Keck, 969 P.2d 841 (Kan. 1998).publishedApp. 2d at 657 (quoting Wallace v. McManus, 776 F.2d 915, 916 [10th Cir. 1985]).
- Nichi Aki Senjuro v. Dr. Murray, 943 F.2d 36 (10th Cir. 1991).publishedWallace v. McManus, 776 F.2d 915, 916-17 (10th Cir.1985).
- Donald G. Sword v. Duane Shillinger, 941 F.2d 1213 (10th Cir. 1991).publishedDalton v. First Interstate Bank of Denver, 863 F.2d 702, 703 (10th Cir.1988); Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.1983). 9 While pro se pleadings by prisoners must be liberally construed without regard to technicalities, see Wa…
- Lister v. Wichita, City of, No. 6:20-cv-01312 (D. Kan. Apr. 18, 2023).See Wallace v. McManus, 776 F.2d 915, 916 (10th Cir. 1985).
- Scherer v. Hill, 213 F.R.D. 431 (D. Kan. 2003).published(Rule 60(b)(6) relief not available if asserted grounds for relief are covered by another provision of Rule 60(b))
- FHC Equities, L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678 (6th Cir. 1999).published(clerk mistakenly sent notice of the grant of summary judgment to the defendant’s former attorney who had withdrawn four months prior to judgment and defendant failed to learn of the judgment within time to appeal)
- Joyce A. Williams v. Off. of Fin. Mgmt., 990 F.2d 1378 (D.C. Cir. 1993).unpublishedSee, e.g., Wallace v. McManus, 776 F.2d 915, 916-17 (10th Cir.1985); Falk v. Allen, 739 F.2d 461, 464 (9th Cir.1984); Vindigni v. Meyer, 441 F.2d 376, 377-78 (2d Cir.1971); cf. Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaints…
Other citing cases
- Williams v. Arn, 654 F. Supp. 241 (N.D. Ohio 1987).published
- Delong v. South Point Bd. of Educ., No. 01CA11 (Ohio Ct. App. 4th Dist. Nov. 20, 2001).unpublished
v.
Patrick McMANUS, Secretary of Corrections Sally Chandler Halford, Director, Kansas Correctional Institute for Women, and the State of Kansas
Wallace, an inmate at the Kansas Correctional Institute for Women, filed an action under 42 U.S.C. § 1983 (1982) asserting various civil rights claims against defendants. Wallace’s attorney was allowed to withdraw from the case on June 8, 1983. On June 16, defendants filed a motion for summary judgment, which was granted by the district court on September 30. The summary judgment motion was mailed to Wallace, but notice of the district court’s entry of summary judgment was sent to her former attorney, instead of to Wallace, even though the judgment was entered almost four months after the attorney had withdrawn. The attorney did not inform Wallace of the dismissal.
Wallace discovered the entry of the summary judgment on December 6, 1983, well after the time to file a notice of appeal had expired. On December 27 she filed a pro se motion with the district court for relief from the judgment or, in the alternative, for an extension of time to file a notice of appeal. The district court denied relief. We hold that the district court properly denied Wallace’s request for an extension of time, but that Wallace is entitled to relief from the judgment under Fed.R. Civ.P. 60(b).
I.
Under Fed.R.App.P. 4(a)(1), Wallace had thirty days from entry of the summary judgment to file her notice of appeal. Although Rule 4(a)(5) permits the district court to extend the time for filing this notice, the request for such an extension must be made within thirty days after the expiration of the time fixed for filing an appeal. Wallace’s motion under Rule 4(a)(5) was filed well outside the additional thirty days permitted by that provision, and was properly denied. See Mayfield v. United States Parole Commission, 647 F.2d 1053 (10th Cir.1981).
II.
Wallace alternatively asserted a claim for relief from the judgment under Fed.R.Civ.P. 60(b)(6), which provides that “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for ... (6) any other reason justifying relief from the operation of the judgment.” Rule 60(b)(6) is not available if the asserted grounds for relief are within the coverage of another provision of Rule 60(b). In re Emergency Beacon Corp., 666 F.2d 754, 758 (2d Cir.1981); Wm. Skillings & Associates v. Cunard Transportation Ltd., 594 F.2d 1078, 1081 (5th Cir.1979). Pro se pleadings by prisoners must be liberally construed, however, without regard for technicalities. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 179, 66 L.Ed.2d 163 (1980); Blake v. Katter, 693 F.2d 677, 682 (7th Cir.1982); United States ex rel. Jones v. Rundle, 453 F.2d 147, 149 (3d Cir.1971). Viewed in this light, we construe Wallace’s motion as[*917] seeking relief under Rule 60(b)(1), which permits the trial court to relieve a party from a final judgment for “mistake, inadvertence, surprise, or excusable neglect.”
The issue with which we are thus faced is whether use of the Fed.R.Civ.P. 60(b)(1) excusable neglect standard to vacate the original judgment and then to reinstate it would impermissibly undermine Fed.R. App.P. 4(a)(5)’s time limitation. Under the circumstances of this case, we believe that it would not. In reaching this conclusion, we agree with the analysis set out by the Ninth Circuit in its en banc consideration of a somewhat similar fact situation. See Rodgers v. Watt, 722 F.2d 456 (9th Cir.1983) (en banc).
In Rodgers, as in this case, the clerk failed to properly comply with Fed.R.Civ.P. 77(d), which requires that immediate notice of the entry of judgment be mailed to the parties. Although Rule 77(d) also provides that lack of this notice “does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed,” Fed.R.App.P. 4(a)(5) furnishes one “escape hatch” from the rigidity of Rule 77(d) upon a showing of excusable neglect. Rodgers, 722 F.2d at 458. The court in Rodgers considered the relationship between Fed.R.App. 4(a)(5) and Fed.R.Civ.P. 60(b)(1), and the applicability of those rules upon a finding of excusable neglect. Id. at 458-59. The court concluded that Rule 4(a)(5), under which a motion to extend the time for filing a notice of appeal must be filed within thirty days after expiration of the time to appeal “by its terms is inapplicable to situations when notice of the entry of judgment is not received until after the thirty day period authorized for the motion.” Id. at 459. The court decided that allowing relief under Fed.R.Civ.P. 60(b)(1) in such circumstances is not contrary to the policy underlying the Rule 4(a)(5) time limitation because a motion for relief “cannot be filed within sixty days if a party has no knowledge of the entry of judgment.” Id. We agree that relief under Rule 60(b) should not be precluded in such situations, and is available to Wallace upon a proper showing.
We further conclude that Wallace has established excusable neglect as grounds for relief under Rule 60(b)(1). In considering the standard for excusable neglect, the court in Rodgers balanced the settled principle that Rule 60(b) is a remedial rule to be liberally construed against the compelling interest in finality of judgments. Rodgers, 722 F.2d at 459-60. It noted that courts have accommodated these competing interests by requiring a party asserting excusable neglect who has failed to learn of the entry of judgment in time to file under Rule 4(a)(5) to show, in addition to lack of notice, “due diligence to ascertain whether the judgment has been entered, or sufficient reason for the lack of such diligence.” Id. at 460 (emphasis added). As a pro se prisoner, Wallace has shown sufficient reason for her failure to learn of the entry of judgment within sixty days. The Federal Rules should not be applied to penalize an uncounselled incarcerated civil rights plaintiff for a clerical error that was none of her doing and of which she had no knowledge. Accord James v. United States, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 615 (1982) (Brennan, J.) (opinion respecting denial of petition for certiorari).
Accordingly, we conclude that Wallace is entitled to relief from the judgment. We reverse and remand this action to the district court with directions to grant appropriate relief under Rule 60(b).
Reversed and remanded.