                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

OLADAYO ADELEKE OLADOKUN,        :
                                 :
    Plaintiff,                   :                       Civil Action No.:     13-00358 (RC)
                                 :
     v.                          :                       Re Document Nos.:      43, 45, 49
                                 :
CORRECTIONAL TREATMENT FACILITY, :
     et al.,                     :
                                 :
    Defendants.                  :

                                 MEMORANDUM OPINION

             DENYING PLAINTIFF’S MOTION FOR RELIEF FROM FINAL JUDGMENT

                                      I. INTRODUCTION

       Plaintiff Oladayo Oladokun moves for reconsideration of the Court’s October 28, 2014

Order dismissing the above-captioned action for failure to prosecute and/or to comply with the

Court’s January 28, 2014 Scheduling Order. Defendants Correctional Treatment Facility,

District of Columbia, and D.C. Department of Corrections oppose Mr. Oladokun’s filings

moving for reconsideration of the case, contending that he fails to satisfy the requirements under

Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure. See Defs.’ Resp. Opp’n Pl.’s

Mot. Hearing, ECF No. 47. Because Mr. Oladokun has not established that he is entitled to relief

from the final order, his motion will be denied.


                                II. FACTUAL BACKGROUND

       On January 22 2013, pro se Plaintiff Oladayo Oladokun filed a complaint against the

United States Marshals Service (USMS) and a number of other defendants in the Superior Court

of the District of Columbia. See generally Compl. ECF No. 1-2. In the complaint, Mr.
Oladokun asserts that Defendants were negligent in providing medical care while he was in their

custody. See Notice of Removal of Civil Action, ECF No. 1. USMS removed the case to this

Court on grounds that the District Court has original jurisdiction, because the claim in the lawsuit

is founded upon the Constitution against an agency of the United States. Id. at 2. Subsequently,

the Court dismissed USMS as a party in the case. See Order, ECF No. 22. The remaining

Defendants in the case were Correctional Treatment Facility, D.C. Department of Corrections,

and the District of Columbia (“Defendants”).

       On January 28, 2014, the Court entered a Scheduling Order requiring the parties to

appear before the Court for a status conference on September 8, 2014. See Scheduling Order,

ECF No. 32 at 2. On June 16, 2014, the parties submitted a Joint Status Report, wherein Mr.

Oladokun requested a stay of the case until August 12, 2014, at which time he believed he would

be released from custody of the Calvert County Detention Center. See Joint Status Report, ECF

No. 34. In that Joint Status Report, the parties also represented to the Court that Mr. Oladokun

was aware of the status conference set for September 8, 2014. Id. at 2. On June 27, 2014, Mr.

Oladokun entered a notice of change of address requesting that the Clerk of the Court forward

copies of any documents and orders filed with the Court as of December 2013 to him at the

Calvert County Detention Center since his home 1 was unoccupied. ECF No. 35 at 1–2. On

August 13, 2014, the parties submitted a Joint Status Report in which they represented to the

Court that they held a telephonic meet-and-confer on August 12, 2014, and that Mr. Oladokun

was aware of the status conference set for September 8, 2014. See Joint Status Report, ECF No.

38.



       1
         Mr. Oladokun’s home was listed as his address prior to filing the June 27, 2014, change
of address notice with the Clerk of the Court. See ECF No. 35.
       On September 8, 2014, Mr. Oladokun failed to appear for the status conference, in

violation of the Scheduling Order. See Order to Show Cause, ECF No. 39. At the status

conference, Defense counsel represented to the Court that she was unsure whether Mr. Oladokun

had been released from the Calvert County Detention Center, but that he was still incarcerated

when their August 12, 2014, telephonic meet-and-confer occurred. Id at 2. At the time, it was

unclear to the Court whether Plaintiff was incarcerated or whether he had been released. Id.

That same day, the Court issued an Order to Show Cause requiring Mr. Oladokun to show cause

in writing by October 6, 2014, “as to why this action should not be dismissed for failure to

prosecute and for violating this Court’s January 28, 2014 Scheduling Order.” Id.

       On September 19, 2014, Mr. Oladokun filed a notice of change of address with the Court

updating his address at the D.C. Jail. See ECF No. 40. Mr. Oladokun also requested that the

Clerk of the Court send him a copy of the docket sheet and all documents filed in his case as of

August 13, 2014. Id. Accordingly, on September 25, 2014, as documented in an internal court

docket entry, the Court forwarded to the D.C. Jail both the Order to Show Cause and a copy of

the docket sheet. See Order, ECF No. 42. On October 28, 2014, after Mr. Oladokun failed to

respond to the Order to Show Cause, the court issued an Order dismissing the action without

prejudice for failure to prosecute and for violation of the Court’s January 28, 2014 Scheduling

Order. Id.

       On January 15, 2015, Mr. Oladokun filed “Petitioner Motion to Show Cause to Proceed,”

wherein he represented that he was incarcerated at the Calvert County Detention Center until

August 25, 2014, when he was transferred to the D.C. Jail. See ECF No. 43 at 1. He also stated

that his release was delayed because he had to attend a violation hearing for a criminal case on

November 10, 2014. Id. Mr. Oladokun claims that he notified the Clerk of the Court of his
whereabouts on August 25, 2014, and that he did not receive the Order to Show Cause until

December 20, 2014. Id at 2. Mr. Oladokun asserts that since the mail was delivered to his home,

which was unoccupied at the time, he had no knowledge of the Order to Show Cause until the

October 6, 2014, deadline had passed. Id. Additionally, Mr. Oladokun claims that Defense

counsel “intentionally misled this court,” because at the September 8, 2014, status conference

she failed to inform the Court that he was being held at the D.C. Jail. Id. Mr. Oladokun states

that Defense counsel was aware of his detention after he wrote to her from the D.C. Jail and after

she communicated with his case manager, Ms. Wogu. Id. at 3. On the basis of this alleged

misrepresentation, and because of the Clerk of the Court’s alleged failure to inform the Court of

his detention at the D.C. Jail after he filed a timely change of address notice, Mr. Oladokun

requested that the Court order a new status conference hearing. Id. at 2–3.

       On April 6, 2015, Mr. Oladokun filed a “Motion for Hearing,” wherein he requested that

the Court grant a new hearing pursuant to the fact that Defense counsel knew of his whereabouts

on August 12, 2014, and August 13, 2014. See ECF. No 45. Lastly, on May 29, 2015, Mr.

Oladokun filed “Plaintiffs Response in Opposition to Defendants Motion for Hearing and or

Construes this Motion as Rule 60(b Motion),” moving for relief from the October 26, 2014, order

dismissing his case. See ECF No. 49. Defendants have opposed the relief sought by Mr.

Oladokun. See ECF No. 44, 47, 50.


                                    III. LEGAL STANDARDS

                                          A. Rule 59(e)

       Under Rule 59(e) a litigant may ask a Court to alter or amend a judgment. A motion

under Rule 59(e) of the Federal Rules of Civil Procedure “must be filed no later than 28 days

after the entry of the judgment.” Fed. R. Civ. P. 59(e). The district court does not have authority
to extend this deadline pursuant to Rule 6(b)(2) of the Federal Rules of Civil Procedure, which

states, “a court must not extend the time to act [on a motion made after the time has expired]

under Rule[] … 59(e).” See Fed. R. Civ. P. 6(b)(2).


                                           B. Rule 60(b)

       Rule 60(b) provides a mechanism for relief from a judgment or order by permitting the

court to relieve a party or its legal representative from a final judgment, order, or proceeding for

the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence that, with reasonable diligence, could not have been discovered in time to

move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5)

the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that

has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other

reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b).

       A Rule 60(b) motion need only be filed “within a reasonable time—and for reasons (1),

(2), and (3) no more than a year after the entry of the judgment.” Fed. R. Civ. P. 60(c)(1). The

party seeking relief under Rule 60(b) bears the burden of showing that he or she is entitled to

relief. Jarvis v. Parker, 13 F. Supp. 3d 74, 77 (D.D.C. 2014) (citing Norris v. Salazar, 277

F.R.D. 22, 25 (D.D.C. 2011)).


                                           IV. ANALYSIS


       The Court construes Mr. Oladokun’s three filings collectively as seeking relief from the

October 28, 2014 Order under Rules 59(e), 60(b)(1), (3), and (6). See ECF No. 43, 45, 49. As

explained below, Mr. Oladokun has not proffered any evidence that warrants reconsideration of
the Order pursuant to Rules 59(e), 60(b)(1), (3), and (6). Therefore, Mr. Oladokun’s motion for

relief from the order is denied.

                                   A. Motion to Alter or Amend a Judgment

       When a motion for reconsideration is filed within twenty-eight days of the challenged

order, courts treat the motion as originating under Rule 59(e) of the Federal Rules of Civil

Procedure. Marbury Law Grp., PLLC v. Carl, 729 F. Supp. 2d 78, 82-83 2010 WL 2977872, at

*3 (D.D.C. July 27, 2010); see also Wilkins v. D.C., 879 F. Supp. 2d 35, 38-39 (D.D.C. 2012)

(citing Nyman v. FDIC, 967 F. Supp. 1562, 1569 (D.D.C. 1997)) (stating that “[r]egardless of the

way a party characterizes a motion, a post-judgment filing challenging the correctness of the

judgment falls within the perimeter of Rule 59(e)”). 2 After twenty-eight days have passed, the

Court cannot grant relief under Rule 59(e) and the Court does not have the authority to extend

this deadline. See Fed. R. Civ. P. 6(b)(2). Here, the Court entered judgment dismissing Mr.

Oladokun’s case on October 28, 2014. If Mr. Oladokun intended the January 15, 2015 motion as

one under Rule 59(e), it is time-barred. Fed. R. Civ. P. 59(e); see also Pet’r Mot. Show Cause

Proceed, ECF No. 43. Accordingly, Mr. Oladokun’s subsequent filings are also time-barred.

See ECF No. 45, 49. Moreover, Mr. Oladokun’s status as a pro se plaintiff is unavailing because

“litigants who proceed without counsel are not excused from following procedural rules.”

Eberhardt v. Brown, 580 F. App’x 490, 491 (7th Cir. 2014) (explaining that district court could

not extend 28-day time limit for filing Rule 59(e) motion for benefit of pro se litigant).



       2
         Although the Federal Rules of Civil Procedure do not specifically provide for motions
for reconsideration, courts generally analyze them under the standards for a motion to alter or
amend judgment under Rule 59(e) or a motion for relief from a judgment or order under Rule
60(b). S.E.C. v. Bilzerian, 729 F. Supp. 2d 9 (D.D.C. 2010) (citing Ellipso, Inc. v. Mann, 583 F.
Supp. 2d 1,3 (D.D.C. 2008)). Therefore, the term “reconsideration,” is used interchangeably
between Rules 59(e) and 60(b).
                        B. Motion for Relief from a Judgment or Order

         Accordingly, Mr. Oladokun’s May 29, 2015 motion (“Rule 60(b) motion”) is considered

as one made under Rule 60(b). See Bailey v. U.S. Marshal Service, No. CIV. A. 08-0283 (CKK),

2009 WL 973197, at *1 (D.D.C. Apr. 2, 2009) (citing Computer Prof’ls for Soc. Responsibility v.

U.S. Secret Serv., 72 F.3d 897, 903 (D.D.C. 1996)) (allowing an untimely motion under Rule

59(e) to be considered as a motion under Rule 60(b) if it states grounds for relief under the latter

rule).

         Mr. Oladokun argues that the following factors warrant relief: (1) Due to inadvertence or

excusable neglect, he did not fail to prosecute the above-captioned case because he submitted a

timely change of address notice with the Clerk of the Court when he was transferred to the D.C.

Jail, but the Clerk of the Court failed to forward him the Order to Show Cause, and (2) Defense

counsel committed “perjury and violation [sic] ethic law” because she presented

“misinformation” regarding his whereabouts to the Court at the September 8, 2014 status

conference. See generally Rule 60(b) Motion, ECF No. 49.

         The first factor asserted by Mr. Oladokun, inadvertence and/or excusable neglect, falls

within Rule 60(b)(1). In evaluating motions for reconsideration under Rule 60(b)(1), the D.C.

Circuit has adopted the Supreme Court’s excusable neglect analysis as set forth in Pioneer Ins.

Servs. Co. v. Brunswick Assocs. Ltd. Pshp., 507 U.S. 380 (1993). See In re Vitamins Antitrust

Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003) (applying the Pioneer analysis to review of

Rule 60(b)(1) motion). Relevant circumstances for the Court to consider include: “(1) the danger

of prejudice to the party opposing the modification, (2) the length of delay and its potential

impact on judicial proceedings, (3) the reason for the delay, including whether it was within the

reasonable control of the movant, and (4) whether the movant acted in good faith.” Pioneer, 507
U.S. at 395.

       Defendants contend that the four Pioneer factors weigh against Mr. Oladokun. See

Defs.’ Resp. Opp’n to Pl.’s Mot. to Reopen, ECF No. 50 at 4. Under the first factor, Defendants

contend that they will be prejudiced if the case is reopened because the case has been closed for

nearly a year, the events alleged in Mr. Oladokun’s Complaint occurred more than four years

ago, and as time passes, the memories of witnesses will continue to fade. Id. Second,

Defendants contend that the length of delay was significant because Mr. Oladokun had ample

time to respond to the Courts Order to Show Cause but failed to file anything with the Court until

nearly four months after the Court dismissed the case. Id. Under the fourth factor, Defendants

allege that Mr. Oladokun is precluded from a finding that he acted in good faith in failing to

respond to the Order to Show Cause because he made no effort to seek an extension of the

deadline to respond. Id. The Court is not fully persuaded by the foregoing reasoning. See

Canales v. A.H.R.E., Inc., 254 F.R.D. 1, 11 (D.D.C. 2008) (holding that “[a]lthough ‘delay in and

of itself does not constitute prejudice,’ the dangers associated with such delay, such as loss of

evidence and increased difficulties in discovery, do establish prejudice to plaintiffs.”) (citing

Capital Yacht Club v. Vessel AVIVA, 228 F.R.D. 389, 393–94 (D.D.C. 2005) (internal quotation

marks omitted)); see also Norris, 277 F.R.D. at 26 n.4 (finding that the July 2011, motion [for

reconsideration] filed by plaintiff following dismissal of the action in April 2011, was well

within the one-year period required for a motion under Rule 60(b)(1)); see also Austin Inv. Fund,

LLC by & through Elieff v. United States, 304 F.R.D. 5, 9 (D.D.C. 2014) (finding that plaintiff’s

failure to prosecute case was the result of inadvertent delivery of court’s order to an incorrect

address, and even though plaintiff had not provided court with an address where he could be

reached, and although he failed to inquire into the status of his case for almost six months, his
bad faith could not be inferred, given that plaintiff was effectively functioning as a pro se

litigant.).

         In any event, under the third and “most important single factor–fault,” Mr. Oladokun fails

to provide an adequate reason for his delay in responding to the Court’s Order to Show Cause.

See Jarvis, 13 F. Supp. 3d at 78–79 (citing Inst. For Policy Studies v. U.S.C.I.A., 246 F.R.D. 380,

383–86 (D.D.C. 2007)); see also Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003)

(describing fault as the “key factor” in excusable neglect analysis). Mr. Oladokun explains that

he did not receive the Court’s Order to Show Cause advising him that the case would be

dismissed without prejudice if he failed to respond by October 6, 2014. See Pet’r Mot. Show

Cause Proceed, ECF No. 43 at 2. But according to Mr. Oladokun’s prior motions, he was

incarcerated at the D.C. Jail from August 25, 2014, to November 10, 2014. Id. Mr. Oladokun

updated his address on September 19, 2014. See Notice of Change of Address, ECF No. 40.

Defense counsel claims that she verbally informed Mr. Oladokun on September 23, 2014, that

the Court had issued the Order to Show Cause. See Exhibit 1, Declaration of Anne M. Orcutt, at

¶ 14. Additionally, pursuant to an internal docket entry, the Clerk of the Court mailed the Order

to Show Cause to Mr. Oladokun at the D.C. Jail on September 25, 2014, not to his home address

where he claims it was sent. Mr. Oladokun does not provide the Court with a satisfactory

explanation for his failure to respond to the Order to Show Cause because the record reflects that

he was duly notified by the Clerk of the Court and Defense Counsel. See Halmon v. Jones Lang

Wootton USA, 355 F. Supp. 2d 239, 244 (D.D.C. 2005) (“Parties have an obligation to monitor

the court’s docket and keep apprised of relevant deadlines.”). As was made clear in Pioneer,

“inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute

‘excusable’ neglect.” See Inst. For Policy Studies, 246 F.R.D. at 383; see also Lightfoot v.
District of Columbia, 555 F. Supp. 2d 61 (D.D.C. 2008) (noting that “neither ignorance nor

carelessness on the part of a litigant ... will provide grounds for [Rule 60(b)(1)] relief). Therefore

the Court finds that Mr. Oladokun is not entitled to relief under Rule 60(b)(1). See Pioneer, 507

U.S. at 395 (stating that “[t]he inquiry into whether a party’s action constitutes excusable neglect

‘is at bottom an equitable one, taking account of all relevant circumstances surrounding the

party’s omission’”). 3

       In addition, the Court finds that relief on grounds of “misrepresentation,” by the

Defendants pursuant to Rule 60(b)(3) is unwarranted. See Walsh v. Hagee, 10 F. Supp. 3d 15

(D.D.C. 2013). To prevail under Rule 60(b)(3), the movant must show “by clear and convincing

evidence … that the other party engaged in fraud, misrepresentation, or misconduct.” Id. at 19

(citing Almerfedi v. Obama, 904 F. Supp. 2d 1, 5 (D.D.C. 2012)) (internal quotation marks

omitted)). Additionally, the movant “must show actual prejudice, that is, he must demonstrate

that defendant’s conduct prevented him from presenting his case fully and fairly.” Munoz v. Bd.

of Trustees of Univ. D.C., 730 F. Supp. 2d 62, 70 (D.D.C. 2010) (citing Ramirez v. Dep’t of

Justice, 680 F. Supp. 2d 208, 210 (D.D.C. 2010)) (explaining that prejudice requires “the movant

[to] show that the misconduct foreclosed full and fair preparation or presentation of its case”

(internal quotation marks omitted)).

       Here, Mr. Oladokun fails to demonstrate how Defense counsel had knowledge of his

whereabouts on September 8, 2014 when she made the alleged “misrepresentations” to the


       3
         Even if Mr. Oladokun did not become aware of the Order to Show Cause until later, the
record makes clear that he was aware of the September 8, 2014 hearing, failed to appear at that
hearing, but made no effort to alert the Court of his reasons for his non-appearance or to
determine what occurred at the hearing. If he had made such a minimal effort when he submitted
his change of address on September 19, 2014, the outcome of this case may have been different.
But, instead, Mr. Oladokun did nothing for several months. Such inactivity and lack of diligence
amounts to a failure to prosecute.
Court. Mr. Oladokun’s prior motions seem to indicate that Defense counsel communicated with

him and his case manager, Ms. Wogu, after the August 12, 2014 telephone conference and prior

to the status conference on September 8, 2014, which would support his claim that Defense

counsel knew that he was incarcerated at the D.C. Jail. See Pet’r Mot. Show Cause Proceed,

ECF No. 43 at 2. In Defendant’s response in opposition to Mr. Oladokun’s allegations, Defense

counsel states that these communications occurred both on and after September 15, 2014. See

Def. Resp. Pl.’s Mot. Show Cause, ECF No. 44 at 2. Defense counsel claims that her lack of

knowledge of Mr. Oladokun’s whereabouts at the time of the status conference “was accurately

conveyed to the Court at the hearing.” Id. (citing Exhibit 1, Declaration of Anne M. Orcutt, at ¶

10). Therefore, Mr. Oladokun’s bare assertions are insufficient evidence of misrepresentation.

See Walsh, 10 F. Supp. 3d 15, 20 (denying Rule 60(b)(3) relief where plaintiff failed to present

clear and convincing evidence of misconduct and relied on conjecture and unsupported

assertions).

       Furthermore, Mr. Oladokun fails to show actual prejudice. There is no indication that

Defense counsel’s statements, even if false, prevented Mr. Oladokun from presenting his case

fully and fairly. Rather, the record reflects that Mr. Oladokun was given timely notice of the

Order to Show Cause, and he failed to take any action until January 15, 2015 after the Court

dismissed the above-captioned action. See generally Pet’r Mot. Show Cause Proceed, ECF No.

43; See, e.g., Green v. Am. Fed'n of Labor & Congress of Indus. Orgs., 811 F. Supp. 2d 250, 254

(D.D.C. 2011) (denying the plaintiff’s motion for reconsideration because “the plaintiff does not

indicate how such fraud would have prevented him from fully and fairly presenting his case

before the court”). Therefore, Mr. Oladokun will not be afforded relief under Rule 60(b)(3)
because he has not effectively demonstrated that Defense counsel made any misrepresentations

to the Court during the September 8, 2014 status conference.

       Finally, Mr. Oladokun cannot prevail under Rule 60(b)(6). “Rule 60(b)(6) ... grants

federal courts broad authority to relieve a party from a final judgment ‘upon such terms as are

just,’ provided that the motion is … not premised on one of the grounds for relief enumerated in

clauses (b)(1) through (b)(5).” Salazar ex rel. Salazar v. Dist. of Columbia, 633 F.3d 1110,

1119–20 (D.D.C. 2011) (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863

(1988)). Rule 60(b)(6) “should be only sparingly used” and only in “extraordinary

circumstances.” Walsh, 10 F. Supp. 3d at 21 (citing Salazar, 633 F.3d at 1119–20).

Additionally, reconsideration is properly granted under Rule 60(b)(6), “only when a party timely

presents a previously undisclosed fact so central to the litigation that it shows the initial

judgment to have been manifestly unjust.” Id. (citing Taitz v. Obama, 754 F. Supp. 2d 57, 59

(D.C. Cir 2010)).

       Mr. Oladokun is barred from asserting relief under Rule 60(b)(6) because his argument is

premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5). Salazar,

633 F.3d at 1119–20. Moreover, even if Mr. Oladokun could invoke Rule 60(b)(6), he fails to

demonstrate extraordinary circumstances or a manifest injustice, or even that there was “a

previously undisclosed fact … central to the litigation.” Walsh, 10 F. Supp. 3d at 21. Therefore,

his claim for relief under Rule 60(b)(6) must also fail. 4




4
 Defendants also oppose Mr. Oladokun’s motions pursuant to Local Rule 7(m), which requires
certification from the movant that he has conferred with opposing counsel prior to filing a
nondispositive motion, but the Court declines to consider this.
                                       V. CONCLUSION

       For the reasons set forth above, Mr. Oladokun’s motions collectively seeking relief under

Rules 59(e), 60(b)(1), (3), and (6) of the October 28, 2014 Order are denied. See ECF No. 43,

45, 49. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: July 8, 2015                                             RUDOLPH CONTRERAS
                                                                United States District Judge
