Opinion
No. 94-CV-7543-CJS.
September 1, 2005
Darryl A. Phelps, Attica Correctional Facility, Attica, NY, for Plaintiff.
Charles D. Steinman, A.A.G., New York State Attorney General's Office, Rochester, New York, for Defendants.
DECISION ORDER
INTRODUCTION
Plaintiff brought an action pursuant to 42 U.S.C. § 1983. Now before the Court is plaintiff's motion for relief from judgment, pursuant to Rule 60(b), of the Rules of Federal Civil Procedure. For the reasons stated below, plaintiff's motion is denied.
BACKGROUND
The factual and procedural background of this case was set forth in this Court's Decision and Order [#126], filed on June 1, 2005, and will not be repeated here. In that Order, the Court granted defendants' motion for summary judgment after finding that, inter alia, plaintiff had failed to prove both the subjective and objective elements of his Eighth Amendment claim, and that, in any event, defendants were entitled to qualified immunity. Judgment was entered against plaintiff [#127] on June 7, 2005, and on June 9, 2005, plaintiff filed a Notice of Appeal [#128] to the United States Court of Appeals for the Second Circuit. On June 27, 2005, plaintiff filed the instant motion with this Court in which he seeks relief from the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Plaintiff's motion also appears to be requesting permission to submit a cross-motion for partial summary judgment. For the reasons that follow, plaintiff's motion is denied.
STANDARDS OF LAW
Rule 60(b) states, in pertinent part: "[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect[.]" FED. R. CIV. P. 60(b)(1).
Rule 60(b), "allows extraordinary judicial relief, [therefore] it is invoked only upon a showing of exceptional circumstances. A motion seeking such relief is addressed to the sound discretion of the district court with appellate review limited to determining whether that discretion has been abused." Nemaizer v. Baker, 793 F.2d 58, 61-62 (2d Cir. 1986). Since plaintiff is now proceeding pro se, the court must read his papers "liberally, interpreting them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
DISCUSSION
Plaintiff does not specify under which subsection of Rule 60(b) he seeks relief. However, since he alleges ineffective assistance of counsel, the Court will analyze his application under subsection (1), which is the one under which "relief from counsel's error is usually sought . . ." Nemaizer, 793 F.2d at 62.In explaining how his counsel was ineffective, plaintiff claims that his attorney erred in not making a motion for "cross summary judgment partial judgment," and "put an opposition without first confronting me [sic]." (Pl.'s Mot. Partial Summ. J. at 2.) Plaintiff's papers are not entirely clear, but he appears to misconstrue his attorney's papers filed in in opposition to defendants' summary judgment motion, as being in opposition to summary judgment for him.
The Second Circuit has held that neither poor strategy on the part of an attorney, nor disagreement with the strategic decisions of an attorney, are appropriate grounds for relief pursuant to rule 60(b):
[W]e have consistently declined to relieve a client under subsection (1) of the burdens of a final judgment entered against him due to the mistake or omission of his attorney. . . . Mere dissatisfaction in hindsight with choices deliberately made by counsel is not grounds for finding the mistake, inadvertence, surprise or excusable neglect necessary to justify Rule 60(b)(1) relief.Nemaizer v. Baker, 793 F.2d at 62 (internal citations and quotations omitted). Plaintiff contends that his attorney erred in submitting an opposition to summary judgment, and that had he not done so, plaintiff would have prevailed in a jury trial. The Court need not determine whether or not this is so, because plaintiff's complaint clearly relates to his attorney's strategy, which is not an appropriate circumstance for Rule 60(b) relief. Accordingly, plaintiff's motion is denied. Since plaintiff's motion for relief pursuant to Rule 60(b) has been denied, the Court deems it unnecessary to consider plaintiff's motion for "cross summary partial judgment."
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.