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Case No. 4:11cv180-RH/WCS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ERICA JEANNE DELGREGO,

Plaintiff,

v. CASE NO. 4:11cv180-RH/WCS

WILLIAM TAYLOR et al.,

Defendants.

_____________________________/

ORDER DENYING THE RULE 60(b) MOTION

The plaintiff Erica Delgrego asserts that while she was an inmate at the 

Federal Correctional Institution–Tallahassee she was required to work in an area 

contaminated by toxic black mold. Ms. Delgrego sued various correctional 

officers, apparently asserting a claim only under the Occupational Safety and 

Health Act. After filing an amended complaint, Ms. Delgrego filed a notice of 

voluntary dismissal, ECF No. 17, ending the case. See Fed. R. Civ. P. 

41(a)(1)(A)(i). 

More than a month later, Ms. Delgrego moved to reopen the case and 

tendered a second amended complaint. ECF Nos. 20, 21. The magistrate judge 

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Case No. 4:11cv180-RH/WCS

entered a report and recommendation that applied the standards of Federal Rule of 

Civil Procedure 60(b) and concluded that the motion to reopen should be denied. 

The case is now before the court on the report and recommendation, ECF 

No. 22, and the objections, ECF No. 24. I have reviewed de novo the issues raised

by the objections. I accept the recommendation, with these additional notes.

First, I assume that after a voluntary dismissal, a case could be reopened 

under Rule 60(b). By its terms, the rule allows relief from a “final judgment, 

order, or proceeding.” The Eleventh Circuit has applied Rule 60(b) to a motion to 

vacate a notice of voluntary dismissal, albeit with no discussion of this issue. See 

Olmstead v. Humana, Inc., 154 F. App’x 800 (11th Cir. 2005) (per curiam); see 

also Tundell v. Merck & Co., No. 3:06cv375/MCR/MD, 2008 WL 2385508, at *2 

(N.D. Fla. June 9, 2008). A number of other courts also have considered Rule 

60(b) motions to vacate notices or stipulations of dismissal. See, e.g., Nelson v. 

Napolitano, 657 F.3d 586, 588-89 (7th Cir. 2011) (“We agree that there may be 

instances where a district court may grant relief under Rule 60(b) to a plaintiff who 

has voluntarily dismissed the action.”); Warfield v. AlliedSignal TBS Holdings, 

Inc., 267 F.3d 538, 542-43 (6th Cir. 2001); Kalt v. Hunter, 66 F.3d 1002, 1004 (9th 

Cir. 1995); Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989); Randall v. 

Merrill Lynch, 820 F.2d 1317, 1321 (D.C. Cir. 1987). 

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Case No. 4:11cv180-RH/WCS

The availability of Rule 60(b) relief in this situation does not help Ms. 

Delgrego, however, because she has not met the requirements for Rule 60(b) relief, 

as the report and recommendation correctly concludes. 

The task of managing the district’s substantial volume of prisoner cases is 

difficult enough without allowing a prisoner to abandon and then reinstate a claim 

for no reason other than a change of mind. A prisoner in this situation can file a 

new lawsuit, if indeed there is a basis for doing so.

Further, it is not at all clear that Ms. Delgrego would be able to state an 

OSHA claim on which relief could be granted, even if the case were reopened. 

See, e.g., Evans v. Turner, 59 F.3d 1242, *1 (5th Cir. 1995) (unpublished) 

(rejecting a state prisoner’s §1983 claim for failing to provide portable toilets and 

hand-washing facilities: “There is nothing in the OSHA itself or its regulations to 

support the claim that it is applicable to state prison farms. Even if it were, we 

have held that OSHA does not give rise to a private cause of action.” (citing Jeter 

v. St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975)). Moreover, Ms. Delgrego 

would be able to state a claim for injunctive relief only if she was still required to 

work around the mold. See City of Los Angeles v. Lyons, 461 U.S. 95, 102, 111 

(1983) (holding that a person who had been subjected to a choke hold in the past

had no standing to seek injunctive relief against the city’s practice of using choke 

holds because there was not a “sufficient likelihood that he will again be wronged 

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Case No. 4:11cv180-RH/WCS

in a similar way”); Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 

1346 (11th Cir. 1999). And Ms. Delgrego apparently would be able to recover 

damages only if she suffered a qualifying physical injury, not if she was only 

exposed to conditions that could cause such an injury. See 42 U.S.C. § 1997e(e)

(prohibiting a prisoner from recovering damages for “mental or emotional injury 

suffered while in custody without a prior showing of physical injury”). These are 

all factors that further support the conclusion—fully appropriate on other 

grounds—that Ms. Delgrego has not shown a “reason that justifies relief.” Fed. R. 

Civ. P. 60(b)(6).

Still, had Ms. Delgrego not voluntarily dismissed her claims, it might well 

be appropriate to construe her submissions as asserting a claim on which relief 

could be granted under Bivens v. Six Unknown Named Agents of Federal Bureau of 

Narcotics, 403 U.S. 388 (1971). See Powell v. Lennon, 914 F.2d 1459 (11th Cir. 

1990) (holding that a prisoner who alleged exposure to asbestos in the dormitory 

adequately stated an Eighth Amendment claim under Bivens). The decision to 

grant relief from the voluntary dismissal thus is not a ruling on the merits of Ms. 

Delgrego’s claim.

IT IS ORDERED:

The report and recommendation is ACCEPTED. The defendant’s motion to 

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Case No. 4:11cv180-RH/WCS

reopen the case, ECF No. 20, is DENIED. 

SO ORDERED on April 18, 2012.

s/Robert L. Hinkle

United States District Judge

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