Wimberly v. United States of America et al

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 6/21/2017 DENYING 10 Motion for Reconsideration. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY WIMBERLY,

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No. 2:17-cv-0858 KJN P

Plaintiff,
v.

ORDER

UNITED STATES OF AMERICA, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned. (ECF No. 5.)

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On May 17, 2017, the undersigned ordered this action dismissed and judgment was

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entered. (ECF Nos. 6, 8.) On May 30, 2017, plaintiff filed a motion for reconsideration of the

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May 17, 2017 order dismissing this action pursuant to Federal Rule of Civil Procedure 60(b).

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(ECF No. 10). For the following reasons, plaintiff’s motion is denied.

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Federal Rule of Civil Procedure 60(b) provides for relief from judgment due to 1) mistake,

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inadvertence, surprise, excusable neglect; 2) newly discovered evidence; 3) fraud; 4) the

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judgment is void; 5) the judgment has been satisfied; or 6) any other reason that justifies relief.

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In this action, plaintiff sought monetary damages against defendants for past wrongs in

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connection with the institution of slavery. Plaintiff stated that his claims were brought pursuant

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to the Alien Tort Claims Act (“ATCA”) and the Treat of Ghent. The undersigned found that
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plaintiff’s complaint suffered from several pleading defects which could not be cured.

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In the pending motion, plaintiff argues that the undersigned misapplied the law in finding

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that he failed to state potentially colorable claims. After reviewing plaintiff’s motion, the

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undersigned finds that plaintiff’s motion is without merit.1

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration (ECF

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No. 10), brought pursuant to Federal Rule of Civil Procedure 60(b), is denied.

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Dated: June 21, 2017

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wimb0858.850
kc

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Plaintiff contends that the undersigned called slavery “frivolous” in the May 17, 2017 order.
The undersigned did not find that the institution of slavery was “frivolous.” Rather, the
undersigned found that plaintiff’s claims challenging the institution of slavery were legally
frivolous.
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