                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                         October 3, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 JESSE TRUJILLO,

       Plaintiff - Appellee,

 v.                                                        No. 19-2031
                                               (D.C. No. 6:04-CV-00635-MV-GBW)
 ALISHA TAFOYA LUCERO, Acting                                (D. N.M.)
 Cabinet Secretary, New Mexico
 Corrections Department;* JOHN GAY,
 Director of Adult Prisons, New Mexico
 Corrections Department,**

       Defendants - Appellants.
                      _________________________________

                            ORDER AND JUDGMENT***
                        _________________________________

Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
                  _________________________________




      *
        Pursuant to Fed. R. App. P. 43(c)(2), Alisha Tafoya Lucero is substituted for
Joe Williams, former Cabinet Secretary, as an appellant in this action.
      **
         Pursuant to Fed. R. App. P. 43(c)(2), John Gay is substituted for Elmer
Bustos, former Director of Adult Prisons, as an appellant in this action.
      ***
          After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Defendants appeal the district court’s denial of their motion under Federal Rule of

Civil Procedure 60(b). They sought vacatur or modification of an order that requires the

New Mexico Corrections Department (NMCD) to provide plaintiff Jesse Trujillo, a New

Mexico inmate housed in Virginia, with stamped and pre-addressed envelopes for legal

mail. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   I. BACKGROUND

       New Mexico incarcerated Mr. Trujillo. By agreement with Virginia, in 2002

New Mexico sent Mr. Trujillo to serve his sentence in the Virginia prison system.1

       Mr. Trujillo filed the underlying action in 2004 under 42 U.S.C. § 1983. Among

Mr. Trujillo’s complaints, he alleged Virginia’s policies governing legal mail denied him

meaningful access to the courts. Virginia provides indigent inmates with one postage-

paid envelope per week for legal mail. Beyond that, inmates “may incur a loan to cover

the cost of postage for legal mail.” App. Vol. 1 at 151.

       The district court held these policies “are not reasonable to assure Mr. Trujillo’s

access to the Courts, particularly as, unlike a prisoner housed in-state, Mr. Trujillo must

use the mail to conduct legal research and to submit any grievance to the NMCD.” Id.

The court therefore ordered Defendants in August 2011 to “file with the Court a plan that

will enable [Mr. Trujillo] to send legal requests and grievances to the NMCD at no

expense to himself.” Id. at 152.




       1
        New Mexico inmates may be housed in the prison system of another state
under the Interstate Corrections Compact. See N.M. Stat. Ann. § 31-5-17.
                                             2
       Defendants filed a Plan to Allow Postage Free Legal Request by Plaintiff to

NMCD with the district court. See id. at 153–54. It provided:

       1. NMCD will provide to Plaintiff in Virginia three (3) standard business
          envelopes, stamped and addressed to NMCD for legal requests and
          grievances upon acceptance of this plan by the court.

       2. In the response or reply sent to Trujillo, a new stamped, pre-addressed
          envelope will be included for the use of Trujillo in making any further
          requests.

       3. By this process, Trujillo will at all times have at least one, and more
          likely two envelopes, postage-paid and already addressed to NMCD, for
          any legal requests he may require to be made to NMCD.

Id. at 153.

       The district court adopted this plan almost verbatim in September 2011. It

ordered:

       1) NMCD will provide to Plaintiff in Virginia three (3) standard business
       envelopes, stamped and addressed to NMCD for legal requests and
       grievances; and 2) in the response or reply sent to Plaintiff, a new stamped,
       pre-addressed envelope will be included for the use of Plaintiff in making
       any further requests.

Id. at 160.

       Defendants did not appeal the district court’s August 2011 order or its September

2011 postage-plan order.2




       2
        Mr. Trujillo appealed, arguing that the postage plan was ineffective in
practice. We affirmed. See Trujillo v. Williams, 460 F. App’x 741, 742–43
(10th Cir. 2012).
                                             3
       Mr. Trujillo sent mail to the NMCD sparingly.3 Yet instead of complying with the

postage-plan order, the NMCD informed Mr. Trujillo that “no more postage-free

envelops [sic] would be provided.” Id., Vol. 2 at 330. This led Mr. Trujillo to file in

August 2016 a motion to re-open the case and hold defendants in contempt for violating

the postage-plan order. The district court denied Mr. Trujillo’s request to re-open the

case but granted his request for sanctions, finding “Defendants have not complied with

the Court’s September 30, 2011 Order.” Id. at 196.

       Defendants then filed a motion to vacate or modify the postage-plan order under

Fed. R. Civ. P. 60(b)(5) and (6). The district court found Defendants “failed to fulfill the

antecedent requirement of changed circumstances, meaning that Rule 60(b)(5) relief is

unavailable” and “failed to demonstrate that their burden is such that it would offend

justice to deny modification under Rule 60(b)(6).” Id. at 401 (brackets and internal

quotation marks omitted). The court further noted Defendants “exhibited an exceptional

lack of good faith in attempting to comply with the Postage Plan Order” in that they

“elected to ignore and defy the Court’s Order.” Id. at 403. Defendants appeal the district

court’s denial of their Rule 60(b) motion.




       3
        Mr. Trujillo claims he “attempted to file at most 4 grievances with the
NMCD.” Aplee. Br. at 3. Defendants characterize Mr. Trujillo’s mailings as “three
attempts to grieve in fourteen years.” Aplt. Reply Br. at 7.
                                             4
                                     II. DISCUSSION

       “A Rule 60(b) motion for relief from judgment is an extraordinary remedy and

may be granted only in exceptional circumstances.” Jackson v. Los Lunas Cmty.

Program, 880 F.3d 1176, 1191–92 (10th Cir. 2018).

       Rule 60(b)(5) provides that an order can be modified if “applying it prospectively

is no longer equitable.” Fed. R. Civ. P. 60(b)(5). In such circumstances, “[t]he party

seeking modification . . . bears the burden of showing that ‘a significant change either in

factual conditions or in law’ warrants revision.” Jackson, 880 F.3d at 1194 (quoting Rufo

v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 384 (1992)).

       Rule 60(b)(6) provides that an order can be modified for “any other reason that

justifies relief.” Fed. R. Civ. P. 60(b)(6). “Rule 60(b)(6) relief is . . . appropriate only

when it offends justice to deny such relief.” Zurich N. Am. v. Matrix Serv., Inc.,

426 F.3d 1281, 1293 (10th Cir. 2005) (internal quotation marks omitted).

              We review a district court’s denial of a Rule 60(b) motion for
              an abuse of discretion. In the Rule 60(b) context, we review
              the district court’s ruling only to determine if a definite, clear
              or unmistakable error occurred below. A reviewing court
              may reverse only if it finds a complete absence of a
              reasonable basis and is certain that the decision is wrong. A
              clear example of an abuse of discretion exists where the trial
              court fails to consider the applicable legal standard or the
              facts upon which the exercise of its discretionary judgment is
              based. An appeal from the denial of a Rule 60(b) motion
              raises for our review only the district court’s order denying
              the motion, and not the underlying judgment itself.

Jackson, 880 F.3d at 1191 (citations and internal quotation marks omitted).




                                               5
       We have carefully reviewed the record citations provided and arguments advanced

by Defendants on appeal. We find that the district court did not abuse its discretion in

denying Defendants’ Rule 60(b) motion.

                                   III. CONCLUSION

       We affirm the district court’s order denying Defendants’ Rule 60(b) motion.


                                             Entered for the Court


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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