1 The Judgment entered in this case erroneously states

that a Report and Recommendation dated August 30, 2006 (document

no. 27), was issued by Magistrate Judge James Muirhead and an

order dated October 18, 2006 (document no. 36), was issued by

Chief Judge Steven J. McAuliffe. That is incorrect. At the

time, the case was before the United States District Court for

the District of Rhode Island. Accordingly, that order was issued

by Judge William E. Smith, and the Report and Recommendation was

issued by Magistrate Judge Lincoln D. Almond. 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gordon C. Reid,

Plaintiff

v. Civil No. 06-cv-182-SM

Opinion No. 2008 DNH 074

Strafford County Department of

Corrections; Superintendent Warren F.

Dowaliby; Kevin Sullivan; Edward McGowen;

Fred Serne; Adam Rivera; Jeffrey McPherson;

and Fernando Serna,

Defendants

O R D E R

On January 15, 2008, the court granted defendants’ various

unopposed motions for summary judgment (documents no. 58, 59, 60,

61, and 62), concluding that, based on the undisputed factual

record, defendants were entitled to judgment as a matter of law. 

The following day, judgment was entered in defendants’ favor as

to all claims advanced in plaintiff’s thirteen-count amended

complaint. See Order dated January 15, 2008 (document no. 64)

and Judgment (document no. 65).1 

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Invoking the provisions of Rule 60(b)(6) of the Federal

Rules of Civil Procedure, plaintiff, Gordon Reid, moves the court

to grant him relief from that judgment. That motion is denied. 

Discussion

Rule 60(b)(6) is the “catch-all” section of Rule 60 and 

provides that, “[o]n motion and just terms, the court may relieve

a party or its legal representative from a final judgment, order,

or proceeding for . . . any other reason that justifies relief.” 

In support of his motion, plaintiff has submitted an affidavit in

which he claims that he never received copies of numerous

documents sent to him by the court and defendants. Specifically,

plaintiff asserts that he did not receive: 

1. The magistrate judge’s Report and Recommendation

(document no. 27), recommending that the court deny

plaintiff’s motion for a temporary restraining order;

2. The court’s order (document no. 36) approving a

different report and recommendation, in which the

magistrate judge recommended that motions to dismiss

filed by two defendants be denied and that the case be

transferred back to New Hampshire; and, perhaps most

importantly, 

3. The defendants’ five separate motions for summary

judgment (documents no. 58, 59, 60, 61, and 62).

See Affidavit of Gordon Reid (document no 66-2) at paras. 3-5. 

Reid says because he never received copies of any of defendants’

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various motions for summary judgment, he “could not respond to

that which he had not received” and, therefore, claims he has

“established reason justifying relief from the operation of the

judgment.” Plaintiff’s motion (document no. 66) at 2. The court

disagrees. 

I. The Timing of Plaintiff’s Motion.

Even accepting Reid’s unlikely claims as true, and assuming

that he never received copies of the five motions for summary

judgment filed by defendants (which motions were mailed to him on

different dates and were never returned to sender as

undeliverable), Reid still cannot prevail under Rule 60(b)(6). 

While their motions for summary judgment were pending, defendants

moved the court to stay all proceedings in the case until the

court had ruled on those dispositive motions. That motion to

stay specifically referenced the five motions for summary

judgment that had been filed by defendants. See Motion to Stay

(document no. 63) at paras. 3-4. It also specifically noted

plaintiff’s failure to file any timely objections. Id. at para.

7. Reid does not deny receiving a copy of defendants’ motion to

stay. See generally Affidavit of Gordon Reid. 

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Despite the fact that the motion to stay put him on notice

of the five pending motions for summary judgment, Reid remained

silent. It was not until more than a month after the court

issued its order granting defendants’ motions for summary

judgment, and nearly seven weeks after defendants filed their

motion to stay, that Reid asserted that he was unaware that any

motions for summary judgment had been pending against him. Given

the circumstances, the court cannot conclude that plaintiff acted

in a timely fashion, as is required by Rule 60(c) (“A motion for

relief under Rule 60(b) must be made within a reasonable time.”).

II. Reid’s Failure to Show the Merits of His Underlying Claims.

The court of appeals for this circuit has made clear that,

“Rule 60(b)(6) motions should be granted only where exceptional

circumstances justifying extraordinary relief exist. . . .

Additionally, a 60(b)(6) movant must make a suitable showing that

the movant has a meritorious claim.” Ahmed v. Rosenblatt, 118

F.3d 886, 891 (1st Cir. 1997) (citations omitted). Even if Reid

had demonstrated that “exceptional circumstances” justify the

“extraordinary relief” he seeks, he has wholly failed to make any

showing that his underlying claims are meritorious. And, as the

court of appeals has held, such a failure is fatal to a Rule

60(b)(6) request for relief from the judgment. 

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This tenet [i.e., that the movant must show that his or

her underlying claims or defenses are meritorious] is

dispositive here. The Union, in its Rule 60(b)(6)

motion, did not make any allusion to the viability of

its underlying suit. Moreover, the defendants, in

their written opposition to the motion, argued at some

length that the Union’s claims were doomed to fail. 

Despite this red alert, the Union never sought leave to

file a rejoinder, see D. Mass. Loc. R. 7.1(a)(3) (in

district court motion practice, reply briefs may be

submitted “with leave of court”), or otherwise to

controvert the defendants’ point. On this record,

then, an essential precondition to Rule 60(b)(6) relief

was unfulfilled.

Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59

v. Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992)

(emphasis supplied)(footnote omitted). See also Rucci v. United

States INS, 405 F.3d 45, 48 (1st Cir. 2005) (“Rule 60(b) relief

is extraordinary in nature, and to warrant such relief a movant

must demonstrate that (1) the motion is timely, (2) exceptional

circumstances justify granting extraordinary relief, and (3)

vacating the judgment will not cause unfair prejudice to the

opposing party. Moreover, a district court should only grant

Rule 60(b) relief if the moving party demonstrates that the

underlying claims have a reasonable chance of success on the

merits.”) (emphasis supplied) (citations and internal punctuation

omitted); Caisse v. DuBois, 346 F.3d 213, 215 (1st Cir. 2003)

(“the movant must show that granting the motion will not be an

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‘empty exercise’ by demonstrating that the underlying claim for

relief is likely to succeed on the merits.”) (citations omitted).

As the court noted in its order granting defendants’ motions

for summary judgment, some of plaintiff’s claims bordered on

being frivolous, if not fanciful (e.g., a claim that he was

denied equal protection because the jail allegedly maintained an

official policy of “not hiring federal pretrial detainees of

African-American ancestry,” order at 4 (quoting count two of

plaintiff’s amended complaint), or that defendants subjected him

to “cruel and unusual forms of punishment by, for example,

refusing to turn off an overhead light in Reid’s cell at night,

operating loud machinery at times Reid found unpleasant, and by

stopping Reid from assaulting another inmate by using pepper

spray on him,” id. In his motion seeking relief from the

judgment, Reid has failed to address the merits of those or any

other claims in his amended complaint and neglected to show how

it is likely that he will prevail on those claims if the case

were reopened. He has, then, failed to comply with an essential

requirement of Rule 60 and is not entitled to the extraordinary

relief he seeks.

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Conclusion

Even assuming the truth of the claims in plaintiff’s

affidavit, he has failed to demonstrate that he is entitled to

the extraordinary relief afforded by Rule 60(b)(6) (or, although

he does not invoke its provisions, Rule 60(b)(1)). First, he has

neglected to explain why he waited so long before notifying the

court (and opposing counsel) that he never received copies of

defendants’ five motions for summary judgment. More importantly,

however, he has failed to point to anything that might suggest

that his underlying claims are meritorious and that vacating the

judgment previously entered will be anything other than an empty,

fruitless exercise. 

Plaintiff’s Motion for Relief from Judgment (document no.

66) is denied. The Clerk of Court shall enter an Amended

Judgment, correcting the typographical errors contained in the

original Judgment, see note 1, supra, and close the case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 2, 2008

cc: Gordon C. Reid, pro se

Corey M. Belobrow, Esq.

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