Opinion
Case No. 4:05cv34-WS/WCS.
January 5, 2006
THIRD REPORT AND RECOMMENDATION
This cause is before the Court upon Plaintiff's filing of motion to reopen the judgment under FED. R. CIV. P. 60(b). Doc. 38. Plaintiff's motion was filed on January 3, 2006. Id.
The basis for Plaintiff's motion is his assertion that exceptional circumstances warrant vacating the judgment dismissing this case and that fraud has been committed under Rule 60(b)(3). Under Rule 60(b) a court may relieve a party from a final judgment or order for, inter alia, "fraud . . ., misrepresentation, or other misconduct of an adverse party," or "any other reason justifying relief from the operation of the judgment." FED. R. CIV. P. 60(b)(3), (b)(6). Assertions of fraud may be appropriate to vacate a judgment that was obtained by fraud. That is not the case here, however, as this action was dismissed because Plaintiff has been barred from filing cases in this Court without full prepayment of the filing fee. The judgment here was not obtained by fraud. Plaintiff's motion is frivolous and must be denied.
In November, 2005, a second report and recommendation was entered concerning Plaintiff's continued abuse of the judicial system and his frivolous request for a certificate of appealability. Doc. 33. That report and recommendation provided that Plaintiff should not be permitted to continue with his repeated filings of successive motions and requests and recommended additional sanctions. It is also hereby recommended that the order adopting this third report and recommendation direct the Clerk of Court to return without filing any further documents submitted by Plaintiff in this case. No further energy or time should be wasted on pleadings filed in a case that has been repeatedly closed.
Plaintiff has already maliciously filed multiple notices of appeal and motions for reconsideration in this case. Docs. 9, 14, 17, 18, 20, 22, 23, 28, and 30. His two previous attempted appeals in this case have already been dismissed by the Eleventh Circuit. Docs. 15, 27.
It is therefore, respectfully RECOMMENDED that: (1) Plaintiff's motion to reopen the judgment entered in this case doc. 38, be DENIED as frivolous and malicious; and (2) that the Clerk of Court be directed to return any documents that Plaintiff attempts to file in this case in the future without the need for a court order.