West v. Secretary, DOC et al

Filing 45

OPINION AND ORDER re: 40 MOTION to Set Aside Opinion and Order 38 Opinion and order construed as a motion pursuant to Fed.R.Civ.P. 60(b), is denied. Signed by Judge Sheri Polster Chappell on 1/22/2018. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES DARYL WEST,
Plaintiff,
v.

Case No: 2:16-cv-694-FtM-38CM

RONALD HEMPHILL, CARMELLO
BERRIOS, KAREN BLANKENSHIP,
H. WETTERER, B. LAROSA,
ROBERT GILBREATH, FNU
SCHULTZ, DIANN SPRATT, JULIE
JONES, WEXFORD HEALTH
SOURCES, KATHY CONNER, K.
WILLIAMS and JAMES LICATA,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Plaintiff’s Motion to Set Aside Opinion and
Order (Doc. 40) filed on December 8, 2017. Plaintiff requests the Court to “recind” [sic]
its Opinion and Order issued on November 15, 2017 (Doc. 38), because the Court
“overlooked/misapprehended and perhaps misconstrued” Plaintiff’s emergency motion as
a “preliminary injunction” instead of a “temporary injunction.”

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Plaintiff does not specify upon which Rule he relies in bringing his Motion.
Consequently, the Court construes Plaintiff’s Motion a seeking relief pursuant to Federal
Rule of Civil Procedure 60(b) which states:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding 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
misconduct by 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 that justifies relief.
Fed. R. Civ. P. 60(b) (2017).

The purpose of Rule 60(b) is to define the specific

circumstances under which a party may obtain relief from a final judgment or order.
Motions under this rule are directed to the sound discretion of the court. Cano v. Baker,
435 F.3d 1337, 1342 (11th Cir. 2006); Mahone v. Ray, 326 F.3d 1176, 1178, n.1 (11th
Cir. 2003); Weiss v. Warden, 703 F. App’x 789, 791 (11th Cir. July 24, 2017). Rule
60(b)(6), known as the catch-all provision, requires a party to “demonstrate that the
circumstances are sufficiently extraordinary to warrant relief.” Aldana v. DelMonte Fresh
Produce N.A., Inc., 741 F.3d 1349, 1355 (11th Cir. 2014) (internal quotations and citations
omitted). Thus, to be entitled to relief under this provision, Plaintiff must show that “absent
such relief, an extreme and unexpected hardship will result.” Crapp v. City of Miami
Beach, 242 F.3d 1017, 1020, (11th Cir. 2001) (internal quotations and citations omitted).
Before considering Plaintiff’s Motion for an Emergency Hearing (Doc. 24), the
Court directed the Secretary of the Florida Department of Corrections to file an expedited
response to the Motion (Doc. 26).

Because the Secretary had notice of and an

opportunity to respond to Plaintiff’s Motion, the Court properly construed Plaintiff’s Motion

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as seeking relief for a preliminary injunction under Fed. R. Civ. P. 65(a) instead of relief
for a temporary restraining order under Fed. R. Civ. P. 65(b).2 Before entering its Opinion
and Order, the Court considered Plaintiff’s Amended Complaint and Appendix (Docs. 2122), the Secretary’s Response to Plaintiff’s Motion and Exhibits A-D (Doc. 33), and
Plaintiff’s Reply to the Secretary’s Response and Exhibit A (Doc. 37). Based upon the
record before it, the Court found Plaintiff could not show a substantial likelihood that he
would prevail on the merits nor that he would suffer irreparable harm and set forth the
factual predicates it relied upon in its November 15, 2017 Order (Doc. 38).
Plaintiff’s instant Motion challenges the Court’s consideration of Plaintiff’s Motion
for Emergency Hearings under Rule 65(a) instead of Rule 65(b), and otherwise merely
reiterates arguments he already made in his previous filings. Consequently, the Court
finds Plaintiff has not articulated a factual basis under one of the grounds for relief
enumerated in clauses (b)(1) through (b)(5) set forth above, and has not shown that he
is otherwise entitled to the exceptional relief in clause (b)(6).
Accordingly, it is now
ORDERED:
Plaintiff’s Motion to Set Aside Opinion and Order (Doc. 40), construed as a motion
pursuant to Fed. R. Civ. P. 60(b), is DENIED.

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Notably, Fed. R. Civ. P 65(b) permits a party to obtain a temporary restraining order
without first providing notice to the opposing party. However, relief under Rule 65(b) is
only available where it is clear that notice upon the opposing party is not feasible. Rule
65(b) further limits the duration of such relief to a maximum of twenty-eight (28) days.

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DONE and ORDERED in Fort Myers, Florida this 22nd day of January, 2018.

SA: FTMP-1
Copies: All Parties of Record

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