Richardson v. Safeway, Inc. , 206 F. App'x 754 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 17, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
C HERYL R . R IC HA RD SO N ,
Petitioner-A ppellant, No. 06-1207
v. District of Colorado
SAFEW AY, IN C., (D.C. No. 01-CV -2438-M SK-OES)
Respondent-Appellee.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Cheryl Richardson appeals from the district court’s denial of her pro se
M otion To Review This Case Under Rule 60(b). W e review the district court’s
denial of the Rule 60(b) motion for abuse of discretion. Searles v. Dechant, 393
F.3d 1126, 1131 (10th Cir. 2004). “‘Given the lower court’s discretion, the
district court’s ruling is only reviewed to determine if a definite, clear, or
unmistakable error occurred below .’” Zurich N. Am. v. M atrix Serv., Inc., 426
*
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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
F.3d 1281, 1289 (10th Cir. 2005) (quoting Cummings v. General M otors Corp.,
365 F.3d 944, 955 (10th Cir. 2004)). W e do not find a definite, clear or
unmistakable error, and therefore affirm.
M s. Richardson originally filed suit against Safeway in 2001 alleging
gender and race discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e), and age discrimination under the Age Discrimination in
Employment Act, 29 U.S.C. § 621, and 42 U.S.C. § 1981. The case was
dismissed on September 12, 2003, after she failed to pay sanctions imposed by the
district court for failure to comply with Safew ay’s discovery requests. This Court
affirmed the dismissal on September 3, 2004. Richardson v. Safeway, 109 Fed
Appx, 275 (10th Cir. 2004).
On April 3, 2006–more than two years later–M s. Richardson filed a Rule
60(b) motion based on the “defendant’s and court’s mistakes, inadvertence,
neglect, newly discovered evidence, fraud, etc.” The district court denied her
motion because she failed to cite any facts to support it and because her motion
was untimely.
On appeal M s. Richardson reargues that the district court in the original
case erred in dismissing her claim. She also asserts that the district court violated
her civil rights by dismissing her case, though she states no facts or legal theory
to support this allegation. She lists a number of clerical mistakes in her court
documents as grounds for review of the judgment. However,
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“Rule 60(b)(1) motions prem ised upon mistake are intended to provide
relief to a party in only two instances: (1) when the party has made an
excusable litigation mistake or an attorney in the litigation has acted
without authority; or (2) when the judge has made a substantive mistake of
law or fact in the final judgment or order.”
Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999). Even if the alleged
clerical errors were made, they are not sufficient to warrant relief from the
original judgment in this case.
The district court did not abuse its discretion in finding M s. Richardson’s
Rule 60(b) motion to be unsupported by facts and untimely. Further, the district
court did not violate her constitutional rights by dismissing the case.
W e also D EN Y M s. Richardson’s motion to proceed in forma pauperis on
appeal, and the appeal is DISM ISSED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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