Cabrera v. Clarke et al, No. 4:2005cv03121 - Document 119 (D. Neb. 2009)

Court Description: MEMORANDUM AND ORDER denying 117 Plaintiff's Motion to Reopen Case. This court's notification of court-appointed attorneys Martinez and Walz of the final judgment in this case cannot constitute "mistake, inadvertence, surprise, or excusable neglect" within the meaning of Fed. R. Civ. P. 60(b)(1), the basis for Plaintiff's motion. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

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Cabrera v. Clarke et al Doc. 119 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA PABLO CABRERA, Plaintiff, vs. DR. JANSSEN WILLIAMS and CORRECTIONAL MEDICAL SERVICES, Defendants. ) ) ) ) ) ) ) ) ) ) ) 4:05CV3121 MEMORANDUM AND ORDER Judgment was entered in this case on August 21, 2008, in favor of Defendants and against Plaintiff, providing that Plaintiff’s Eighth Amendment claim was dismissed with prejudice, and Plaintiff’s state-law medical malpractice claim was dismissed without prejudice . Plaintiff has filed a motion (filing 117) to reopen this case pursuant to Fed. R. Civ. P. 60(b)(1) for the reason that the court failed to timely notify him of the entry of judgment. Plaintiff claims he was not notified of the judgment until September 28, 2008, more than 30 days after judgment was entered, and was therefore denied the opportunity to appeal. Plaintiff asserts that the Clerk of Court improperly sent the final judgment to Omaha attorney Stephanie Martinez instead of to Plaintiff himself at the prison in Tecumseh, Nebraska. “[A]fter his motion for court[-]appointed counsel was denied . . . there is no legal basis upon which this court could base any beli[e]f that attorney Martinez was his attorney of record at the time inasmuch as he had expressed to the court his inability to retain counsel because of the condition of his poverty.” (Filing 117.) The docket sheet for this case indicates that attorney Stefanie A. Martinez entered her appearance as Plaintiff’s counsel on November 19, 2007. (Filing 77.) On Dockets.Justia.com May 29, 2008, Martinez and attorney James R. Walz became Plaintiff’s appointed counsel (filing 97), a status they retained through entry of judgment in this case and beyond. (See Filing 114, Order granting Martinez’s and Walz’s motion for reimbursement from Federal Practice Fund dated Nov. 14, 2008.) Therefore, this court’s notification of court-appointed attorneys Martinez and Walz of the final judgment in this case cannot constitute “mistake, inadvertence, surprise, or excusable neglect” within the meaning of Fed. R. Civ. P. 60(b)(1), the basis for Plaintiff’s motion. Accordingly, IT IS ORDERED that Plaintiff’s motion to reopen this case (filing 117) is denied. DATED this 9th day of September, 2009. BY THE COURT: Richard G. Kopf United States District Judge *This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court. 2

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