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Mundo-Violante v. Kerry

United States District Court, W.D. Virginia, Harrisonburg Division

February 27, 2017

JOHN F. KERRY, SECRETARY OF STATE, et al., Defendants.


          Elizabeth K. Dillon United States District Judge

         Following the court's July 7, 2016 order granting defendants' motion for summary judgment, plaintiff Ublester Mundo-Violante filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e).[1] (Mot. Recons., Dkt. No. 37.) Mundo-Violante alleges three reasons why the court should reconsider its decision: (1) neither the court nor defendants provided notice regarding defendants' motion for summary judgment as required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975); (2) the court erred by considering defendants' “abandoned” claim that Mundo-Violante failed to exhaust his administrative remedies; and (3) the court violated Mundo-Violante's due process rights by failing to apply a relaxed pleading standard and liberally construe his pleadings as a pro se plaintiff. The court concludes that Mundo-Violante received proper Roseboro notice, that the court did not consider defendant's exhaustion argument, and that the court properly found that he failed to meet his burden of proof. The court will therefore deny his motion for reconsideration.


         “The Federal Rules of Civil Procedure do not expressly provide for a post-judgment ‘motion to reconsider.'” Keitz, 2013 U.S. Dist. LEXIS 144003, at *2. Instead, courts typically construe these motions as either motions to alter or amend a judgment under Rule 59(e) or motions for relief from judgment under Rule 60(b). Id. (citing Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 470 n.4 (4th Cir. 2011)). When a “post-judgment motion is filed within [twenty-eight] days of the entry of judgment and calls into question the correctness of that judgment it should be treated as a motion under Rule 59(e).”[2] Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). The court will therefore construe Mundo-Violante's submission as a Rule 59(e) motion to alter or amend a judgment.

         “A Rule 59(e) motion may only be granted in three situations: ‘(1) to accommodate an intervening change in controlling law; (2) to account for new evidence . . .; or (3) to correct a clear error of law or prevent manifest injustice.'” Mayfield v. NASCAR, 674 F.3d 369, 378 (4th Cir. 2012) (quoting Zinkland v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)). This is, however, “an extraordinary remedy that should be applied sparingly.” Id. Because Mundo-Violante does not point to any change in controlling law or ask the court to consider new evidence, the court will consider only whether the alleged errors identified by Mundo-Violante are “clear errors of law” or created a “manifest injustice.”


         A. Roseboro Notice

         Mundo-Violante argues that the court granted summary judgment “without the required notice pursuant to Roseboro, ” and that it further failed to provide a “form of notice sufficiently understandable to one in [his] circumstances.” (Mot. Recons. 2-3.) It is unclear whether Mundo-Violante intends to assert that he did not receive notice or that he received deficient notice. The court will therefore address both arguments.

         Roseboro requires courts within the jurisdiction of the Fourth Circuit to advise a pro se plaintiff of both his right to file responsive material and the possibility that a failure to respond may result in the court finding against the plaintiff. 528 F.2d at 310. By requiring notice, the Fourth Circuit sought to provide a pro se litigant the “reasonable safeguard” of being “advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him.” Id. (quoting Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968)). Such notice is especially important when it concerns a dispositive motion because a failure to respond could result in the dismissal of the action or summary judgment against the pro se party. Id. Accordingly, “before entering summary judgment against appellant, the District Court, as a bare minimum, should have provided [Plaintiff] with fair notice of the requirements of the summary judgment rule.” Id. (quoting Hudson, 412 F.2d at 1094).

         On January 20, 2016, the court mailed Mundo-Violante a notice of defendants' motion. (Dkt. No. 16.) Pursuant to Roseboro, the notice informed him that “[i]f Plaintiff does not respond to Defendants' pleadings, the Court will assume that Plaintiff has lost interest in the case, and/or that Plaintiff agrees with what the Defendant[s] state[] in their responsive pleading(s).” (Id.) Furthermore, it suggested that Mundo-Violante “may wish to respond with counter-affidavits or other additional evidence, ” and that failure to respond within twenty-one days may lead to dismissal of his case. Id. Thus, the court finds that the notice provided to Mundo-Violante satisfied the requirement outlined in Roseboro.

         The court recognizes, however, that Mundo-Violante, who has otherwise responded timely, failed to respond within the twenty-one days provided in the court's notice. Instead, he filed only motions to strike the declarations introduced in support of defendants' motion to dismiss or for summary judgment. While this may support Mundo-Violante's assertion that he did not receive the requisite notice, the court later provided additional notice in its memorandum opinion denying his motions to strike. (Mem. Opinion 12, Dkt. No. 27.) There, the court specifically noted that “[h]is response should include any additional documents or sworn testimony that he wants the court to consider, and it should address the primary contentions raised by defendants' motion, ” and the court extended the time for Mundo-Violante to respond by an additional twenty-one days. Id. Moreover, Mundo-Violante clearly received the notice provided within the court's memorandum opinion because he refers to the denial of his motions to strike in his subsequent response to defendants' motions. (Verified Resp. 9, Dkt. No. 29.)

         Accordingly, the court concludes that Mundo-Violante received sufficient notice pursuant to Roseboro and that such notice was “sufficiently understandable to one in [his] circumstances.” Roseboro, 528 F.2d at 310 (quoting Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968)).

         B. Exhaustion of Administrative Remedies

         Mundo-Violante contends that the court erred by considering defendants' argument that he failed to exhaust his administrative remedies. Additionally, he asserts that the court should not have relied upon or weighed exhibits submitted along with defendants' motion to dismiss and for summary judgment after defendants opted not to pursue their exhaustion argument. Because defendants ...

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