Opinion
CIVIL No: 5:16-cv-80-MTT-MSH
03-07-2017
STEVEN EUGENE SMITH, Plaintiff, v. Warden SAM ZANDERS, et al., Defendants.
ORDER AND RECOMMENDATION
Presently pending before the Court are pro se Plaintiff Steven Eugene Smith motions to reopen his case (ECF No. 9) and for appointed counsel (ECF No. 10). Because Plaintiff is proceeding pro se, his pleadings must be liberally construed. See, e.g., Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). The undersigned will therefore consider Plaintiff's motion to reopen as being filed pursuant to Federal Rule of Civil Procedure 60, which provides a party with an avenue to seek relief "from a final judgment, order, or proceeding[.]" Fed. R. Civ. P. 60(b). Under Rule 60(b), a court can provide relief from a judgment or order in the following limited circumstances:
Eleventh Circuit authority suggests that a motion under Rule 60(b) is appropriate where a Plaintiff voluntarily dismisses his case and thereafter seeks to reopen it. See Olmstead v. Humana, 154 F. App'x 800, 805 (11th Cir. 2005) (per curiam) (reviewing trial court's orders denying relief under Rule 60(b) where pro se plaintiff voluntarily dismissed case and sought vacation of dismissal); see also Rismed Oncology Sys., Inc. v. Baron, 297 F.R.D. 637, 655 (N.D. Ala. 2014), aff'd 638 F. App'x 800 (11th Cir. 2015) (per curiam) (finding that "a Rule 41(a)(1)(A) voluntary dismissal by a plaintiff constitutes a 'final order, judgment, or proceeding' for purposes of Rule 60(b)" and predicting that the Eleventh Circuit would reach the same conclusion if it directly addressed the issue).
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it has been based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.Plaintiff has not clearly asserted that any of the first five specific circumstances apply to his case; instead he bases his motion on his allegation that "he has not submitted or filed with this court's clerk any request or motion to voluntarily dismiss this action in above[]-styled case." Mot. Reopen 1, ECF No. 9. The undersigned must therefore determine whether this constitutes "any other reason" justifying Rule 60(b)(6) relief in this case.
To the extent Plaintiff wishes to assert that 60(b)(1) applies because he mistakenly or inadvertently filed his notice of voluntary dismissal, the undersigned notes that a party's "pro se status in civil litigation generally will not excuse mistakes he makes regarding procedural rules." Olmstead, 154 F. App'x at 806.
Plaintiff filed the above-captioned 42 U.S.C. § 1983 Complaint on February 18, 2016. On February 29, 2016, the Court received and docketed a filing presumably from Plaintiff requesting that the Court "dismiss the recently filed 42 § 1983 claim without prejudice." Notice of Voluntary Dismissal 1, ECF No. 5. Seven months later, the Plaintiff filed a demand for a jury trial and motion to appoint counsel, both of which were denied because Plaintiff's case was closed after the Court received his notice of voluntary dismissal. See Order, Oct. 6, 2016, ECF No. 8. Plaintiff filed the presently-pending motions to reopen and for appointed counsel after receiving the Court's October 6th Order.
Plaintiff does not provide any facts in his motion to reopen that would lead the undersigned to believe that he did not actually file the notice of voluntary dismissal postmarked on February 24, 2016 and received and docketed on February 29, 2016. Plaintiff's only argument is that he received an order of referral in this case on February 22, 2016 and that he "would not have filed any dismissal because the action would just have been docket[ed]." Mot. Reopen 1. This reasoning, however, ignores the fact that Plaintiff specifically identified his case as being "recently filed" in his notice of voluntary dismissal. Notice of Voluntary Dismissal 1.
Relief under 60(b)(6) "is intended 'only for extraordinary circumstances.'" Olmstead v. Humana, Inc., 154 F. App'x 800, 805 (11th Cir. 2005) (per curiam) (citing Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000)). Accordingly, Plaintiff is required to "demonstrate a justification for relief so compelling that the district court was required to grant [the] motion." Id. (internal quotation marks omitted) (emphasis and alteration in original). Plaintiff has failed to offer a compelling reason for the Court to grant the relief he seeks. Plaintiff's claims were dismissed without prejudice, and he therefore has the opportunity to re-file them. See id. at 806 (finding no "extraordinary" circumstances justified Rule 60 relief existed where movant could have remedied problem by filing for a stay in proceedings rather than voluntarily dismissing case). The undersigned therefore RECOMMENDS that Plaintiff's motion to reopen (ECF No. 9) be DENIED. The Clerk is DIRECTED to mail Plaintiff a copy of his notice of voluntary dismissal (ECF No. 5) as requested by Plaintiff in his motion to reopen so that he may review his filing.
It does not appear the statute of limitations would bar Plaintiff from refiling his claims. Plaintiff alleges his prosecution was illegal and his conviction was invalid because of procedural irregularities with the grand jury and his indictment. See Compl. 3-4, ECF No. 1. "A cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Heck v. Humphrey, 512 U.S. 477, 489-90 (1994). Because Plaintiff has not alleged that his conviction or sentence has been invalidated, it appears his claims have yet to accrue, at least based on his present Complaint. --------
Plaintiff has also moved for the appointment of counsel. Under 28 U.S.C. § 1915(e)(1), the Court "may request an attorney to represent any person unable to afford counsel." There is, however, "no absolute constitutional right to the appointment of counsel" in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989) (en banc). The facts stated in Plaintiff's presently-pending motions are not complicated, and the law governing the resolution of these motions is neither novel nor complex. Plaintiff's motion to appoint counsel (ECF No. 10) is thus DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation with the Honorable Marc T. Treadwell, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. Parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED and RECOMMENDED, this 7th day of March, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE