Opinion
87-CV-01122 (NPM/GLS).
September 24, 2001.
JERRY YOUNG a/k/a/ RAMADAN. Plaintiff, Pro se, Auburn Correctional Facility Auburn, NY.
VICTORIA HUNTER HAY, DAVID B. ROBERTS, ASST. ATTORNEY GENERALS HON. ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Albany, NY., Attorney for Defendant.
MEMORANDUM-DECISION AND ORDER
Acting pro se, plaintiff Jerry Young, a/k/a Ramadan, moves to vacate an earlier judgment by this court granting defendant Thomas A. Coughlin summary judgment and closing this case. Defendant opposes the motion. For the following reasons, plaintiff's motion to vacate is dismissed as untimely.
BACKGROUND
Plaintiff is currently incarcerated in Auburn Correctional Facility. In 1987, plaintiff commenced this 42 U.S.C. § 1983 action against defendant in his individual capacity. At that time, defendant was the Commissioner of the New York State Department of Correctional Services. Plaintiff advanced two claims, (1) that the decision denying him permission to wear a religious hat with an F.O.I. (Fruit of Islam) insignia violated his First, Fourth, and Fourteenth Amendment rights, and (2) that the New York regulations governing prison disciplinary hearings unlawfully deprived him of his due process rights because they contain no standard of proof.
In 1998, after protracted litigation, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. On January 4, 1999, Judge William K. Sessions, sitting by designation, issued a Memorandum Opinion and Order granting defendant's motion, denying plaintiff's cross motion and closing the case (see Dkt. No. 63). Judgment was entered accordingly (see Dkt. No. 64). With respect to plaintiff's constitutional challenge to the decision denying his request to wear the F.O.I insignia on his hat, the court determined that summary judgment was appropriate because defendant enjoyed qualified immunity (see Dkt. No. 63 at 8). With respect to plaintiff's due process claim, the court concluded that, even assuming plaintiff had a cognizable liberty interest, the applicable New York regulations provided him with sufficient due process (see id. at 13). Accordingly, the court granted defendant's motion for summary judgment on the due process claim (see id. at 14).
Plaintiff thereafter moved for reconsideration of the January 4, 1999 memorandum opinion and order. Defendant cross- moved to strike the motion on timeliness grounds. On May 14, 1999, the court denied plaintiff's reconsideration motion and denied defendant's cross motion as moot (see Dkt. No. 72). Plaintiff now moves to vacate the January 7, 1999 judgment granting defendant summary judgment and closing this case.
DISCUSSION
Plaintiff argues that (1) defendant was not entitled to qualified immunity, (2) he had a liberty interest and his disciplinary confinement violated his due process rights, (3) New York regulations are unconstitutional, (4) he was denied equal protection, and (5) he was subjected to discrimination. Defendant's principal opposition to the motion again rests on timeliness grounds.
Although not specifically stated, the court presumes plaintiff's motion is made pursuant to Fed.R.Civ.P. 60(b). Under Rule 60(b), a court may relieve a party "from a final judgment, order or proceeding" for, among other things, (1) "mistake," (2) "newly discovered evidence," (3) "fraud" and (6) "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(1)-(3), (6). The rule further states that "the motion shall be made within a reasonable time, and for reasons (1), (2) and (3), not more than one year after the judgment, order or proceeding was taken." Fed.R.Civ.P. 60(b).
As stated above, judgment in this case was entered on January 7, 1999. The instant motion was filed on March 24, 2000 — fourteenth months after entry of the judgment. Plaintiff's motion is obviously untimely under Rule 60(b)(1), (2) and (3) because it was not made within one year of the entry of the judgment. Moreover, this court does not consider plaintiff's fourteen-month delay in bringing this motion to be "reasonable" and, thus, the motion is also untimely under Rule 60(b)(6).
The court notes that even if plaintiff's motion was timely, it would be denied. Plaintiff provides no colorable argument to vacate the judgment here but, rather, merely rehashes the very same arguments advanced in his earlier cross motion for summary judgment and motion for reconsideration. Those issues have been fully considered and rejected.
CONCLUSION
For the above reasons, plaintiff's motion to vacate this court's January 7, 1999 judgment (Dkt No. 73) is DISMISSED as untimely.
IT IS SO ORDERED.