F I L E D
United States Court of Appeals
Tenth Circuit
November 10, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
CHARITY LEHNERT,
Plaintiff-Appellant, No. 04-1529
v. (D. Colorado)
BILL HERSH, Lieutenant; (D.C. No. 01-B-859 (BNB))
THOMAS HAYNIE, Lieutenant;
RODNEY RUBEN, Lieutenant;
JOEL LEVY, Captain; LINDA
FICSHER, Lieutenant; KAREN
RAYL, Lieutenant; MARY WEST,
Division 2 Director;
Defendants,
and
T. UNRUH, Captain; BECKY
TORRI, Major; NOBLE
WALLACE, Warden; RANDY
LIND, Captain,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
Before EBEL, McKAY, and HENRY, Circuit Judges. **
Charity Lehnert appeals the district court’s order denying her Motion for
Rehearing, filed in the district court on August 20, 2004. We affirm the district
court’s decision.
I. BACKGROUND
In May 2001, Ms. Lehnert filed this pro se 42 U.S.C. § 1983 action alleging
that she had been subjected to physical abuse while incarcerated at the Denver
Women’s Correctional Facility. Ms. Lehnert failed to respond to several court
orders, and, as a result, on January 2, 2002, the district court dismissed her
complaint.
On December 11, 2003, Ms. Lehnert filed a motion for relief from the
judgment pursuant to Fed. R. Civ. P. 60(b)(1). She asserted that she had been
incarcerated since August 7, 2001 and “did not receive notice of any judgment
against her and was confused and misinformed about federal civil procedures in
question.” Rec. doc. 28, at 1-2.
After examining the briefs and appellate record, this panel has determined
**
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34( F ). The case is therefore submitted without oral
argument.
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On May 7, 2004, the district court denied Ms. Lehnert’s Rule 60(b)(1)
motion. The court stated:
I cannot conclude that the grounds argued by Plaintiff
constitute excusable neglect. The record here indicates
that after Plaintiff filed her initial complaint, she informed
the court of a new address when her mail was not properly
forwarded to her in June 2001. As a result, it is clear that
Plaintiff was aware that in order to receive pleadings from
the court in this matter, she would need to inform the court
of any change of her address. The record further reveals
that Plaintiff had no contact with the court, after paying
her filing fee in July of 2001, until ten months later when
Plaintiff finally notified the court of her new address in
May 2002.
Rec. doc. 29, at 2-3 (Order, filed May 7, 2004). The court further noted that
despite notifying the court of her new address in May 2002, Ms. Lehnert did not
seek relief from the dismissal of her case until many months later.
On August 20, 2004, Ms. Lehnert filed a Motion for Rehearing. She cited
Fed. R. Civ. P. 60(b)(1). As grounds for relief, she again asserted that she had
not received mail from the district court. See Rec. doc. 30. The court denied
that motion.
II. DISCUSSION
Because she cited Fed. R. Civ. P. 60(b)(1) and argued that the court should
vacate its order of dismissal on grounds of excusable neglect, we view Ms.
Lehnert’s August 2004 Motion for Rehearing as a motion for relief from the
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judgment pursuant to Fed. R. Civ. P. 60(b)(1). Rule 60(b)(1) provides that a
district court may grant relief from a judgment due to “mistake, inadvertence,
surprise or excusable neglect.” A Rule 60(b) motion “shall be made within a
reasonable time, . . . and . . . not more than one year after the judgment, order, or
proceeding was entered or taken.”
We review the denial of a Rule 60(b) motion for an abuse of discretion.
FDIC v. Oldenburg, 38 F.3d 1119, 1123 (10th Cir. 1994). “Relief under Rule
60(b) is extraordinary and may only be granted in exceptional circumstances.”
Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440
(10th Cir. 1990).
Here, Ms. Lehnert’s August 20, 2004 Motion for Rehearing was untimely:
she filed it more than two and one-half years after the district court’s order of
dismissal. Moreover, for the reasons set forth in the district court’s order denying
her first Rule 60(b) motion, Ms. Lehnert has not established excusable neglect
warranting relief under Rule 60(b).
III. CONCLUSION
Accordingly, we AFFIRM the district court’s denial of Ms. Lehnert’s
Motion for Rehearing. We also DENY Ms. Lehnert’s motion to proceed in forma
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pauperis in this appeal. Ms. Lehnert is therefore responsible for the immediate
payment of the unpaid balance of the appellate filing fee.
Entered for the Court,
Robert H. Henry
United States Circuit Judge
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