Opinion
17-CV-9521 (CM)
11-12-2019
DESMOND M. WITHERSPOON, Plaintiff, v. UNITED STATES OF AMERICA, Defendants.
ORDER :
Plaintiff filed this action pro se. On December 8, 2017, the Court dismissed the complaint on the ground that Plaintiff is barred from filing any new action in forma pauperis (IFP) without first obtaining from the Court leave to file. See Witherspoon v. Rivera, No. 15-CV-4328 (LAP) (S.D.N.Y. June 30, 2015). Nearly two years later, on August 29, 2019, Plaintiff filed a motion for reconsideration challenging the 2017 dismissal order.
The Court liberally construes this submission as a motion under Fed. R. Civ. P. 60(b) for relief from a judgment or order. After reviewing the arguments in Plaintiff's submission, the Court denies the motion.
DISCUSSION
Under Fed. R. Civ. P. 60(b), a party may seek relief from a district court's order or judgment for the following reasons:
(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 other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief.Fed. R. Civ. P. 60(b).
In Plaintiff's motion, he argues that the Court relied on the wrong code section. The Court has considered Plaintiff's arguments, and even under a liberal interpretation of his motion, Plaintiff has failed to allege facts demonstrating that any of the grounds listed in the first five clauses of Fed. R. Civ. P. 60(b) apply. Therefore, the motion under any of these clauses is denied.
To the extent that Plaintiff seeks relief under Fed. R. Civ. P. 60(b)(6), the motion is also denied. "[A] Rule 60(b)(6) motion must be based upon some reason other than those stated in clauses (1)-(5)." United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009) (quoting Smith v. Sec'y of HHS, 776 F.2d 1330, 1333 (6th Cir. 1985)). A party moving under Rule 60(b)(6) cannot circumvent the one-year limitation applicable to claims under clauses (1)-(3) by invoking the residual clause (6) of Rule 60(b). Id. A Rule 60(b)(6) motion must show both that the motion was filed within a "reasonable time" and that "'extraordinary circumstances' [exist] to warrant relief." Old Republic Ins. Co. v. Pac. Fin. Servs. of America, Inc., 301 F.3d 54, 59 (2d Cir. 2002) (per curiam) (citation omitted). Plaintiff has failed to allege any facts demonstrating that extraordinary circumstances exist to warrant relief under Fed. R. Civ. P. 60(b)(6). See Ackermann v. United States, 340 U.S. 193, 199-202 (1950).
CONCLUSION
Accordingly, Plaintiff's motion for reconsideration (ECF Nos. 7-8) is denied.
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
Plaintiff's case in this Court under Docket No. 17-CV-9521 is closed. The Court will only accept for filing documents that are directed to the Second Circuit Court of Appeals. If Plaintiff files other documents that are frivolous or meritless, the Court will direct Plaintiff to show cause why Plaintiff should not be barred from filing further documents in this action.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: November 12, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge