Opinion
20-cv-02004 (PMH)
01-26-2024
DARRELL GUNN, Plaintiff, v. ANTHONY J. ANNUCCI, Acting Commissioner, et al., Defendants.
MOTION TO VACATE JUDGMENT Fed.R.Civ.P. 60b(1)
PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE
PLEASE TAKE NOTICE, that upon the annexed affidavit of Darrell Gunn, being duly sworn to ton the 19 day of January 2024, the attached all papers, and proceedings heretofore had, a motion will be made, in the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, or as soon thereafter as plaintiff may be heard, for an order, and independant action pursuant to Rule 60(b)(1), for reconsideration of its order to vacate and set aside the judgment made on April 29, 2021 for the following reasons:
There was a mistake, inadvertance, surprise, or excusable neglect when United States District Judge Philip M. Halpern did not allow any other inmate who also filed grievance complaint number GH-82882-16 No Heat in his order. These inmates who was also exposed to freezing temperatures during the Spring of 2017. See, Brown v. New York, 2020 WL 3630388, at *5. Here, in grievance complaint number GH-82882-16 No Heat, each grievant complained of constitutional violation by defendant whom was well aware that other inmates was exposed to freezing temperatures during the Spring of 2017.
This motion is based upon affidavit of Darrell Gunn, filed and attached to this motion to vacate judgment upon the attached papers upon the Record and filed in this action, and upon testimony to be presented before this Court on the hearing of this motion.
Plaintiff's application to vacate judgment pursuant to Federal Julinda Dawkins Rule of Civil Procedure 60(b)(1) is denied as untimely. Rule Assistant Attorney General 60(c)(1) provides that "[a] motion under Rule 60(b) must be ma Liberty Street - 18th Floor made within a reasonable time--and for reasons (1), (2), and New York, New York 10005 (3) no more than a year after the entry of the judgment or order or the date of the proceeding. Here, the Judgment was entered on April 29, 2021. (Doc. 25). Plaintiff's motion to vacate was made more than a year after the entry of the Clerk of the Court Judgment, and as such, is untimely. To the extent Plaintiff U.S. District Court seeks reconsideration of the Court's April 29, 2021 Order Southern District of New York dismissing the case (Doc. 24), such an application must be 300 Quarropas Street served within fourteen (14) days after the entry of the White Plains, New York 10601 judgment pursuant to Local Civil Rule 6.3, and Plaintiff's application for reconsideration is thus also untimely. The Clerk of Court is respectfully directed to terminate the motion sequence pending at Doc. 33.
SO ORDERED.
I, the undersigned, declare:
1. lam the Plaintiff in the above entitled action.
2. I served the within documents described as Motion to vacate -judgment pursuant to Fed.R.Civ.P. 60b(1) and Affidavit in Support and Declaration of service. by placing true exact copies thereof in a sealed envelope in the prison mail for delivery by First Class Mail via U.S. Postal Service to the following parties:
Julinda Dawkins, Assistant Attorney General
28 Liberty Street - 18th Floor
New York, New York. 10005
3. I further certify under penalty of perjury that the foregoing is true and correct pursuant to 28 U.S.C. § 1746.