Smith v. Owens et al
ORDER denying 30 Motion to Set Aside Judgment; denying 31 Motion to Strike ; denying 33 Motion to Amend/Correct. Ordered by Judge Hugh Lawson on 1/18/2013. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
DONALD FRANK SMITH,
Civil Action No. 7:12-cv-23 (HL)
DEPARTMENT OF CORRECTIONS
VALDOSTA STATE PRIOSN, et al.,
Before the Court are three Motions filed by Plaintiff Donald Frank Smith:
(1) Motion for Relief from Judgment under 60(b) (Doc. 30); (2) Motion to Strike
Defendants Motion to Dismiss and Reply Thereto (Doc. 31); and (3) Motion for
Leave to Amend Original Complaint (Doc. 32). These Motions have been filed by
Plaintiff after the entry of judgment in this case. The Motions are denied for the
Motion for Relief under Rule 60(b)
Rule 60(b) provides grounds for relief from a final judgment, order, or
proceeding. Henderson, 2011 WL 4375036, at *1. To earn relief from judgment
under Rule 60(b), the moving party must show that absent reopening the
judgment, “extreme” and “unexpected” hardship will result. United States v. Swift
& Co., 286 U.S. 106, 119, 52 S.Ct. 6460 (1932). The justification for granting
relief must be “so compelling that the court [is] ‘required’ to vacate its order.”
Montero v. Potter, 174 Fed. Appx. 489, 490 (11th Cir. 2006) (citing Rice v. Ford
Motor Co., 88 F.3d 914, 919 (11th Cir. 1996)).
In this case, Plaintiff claims that the judgment should be reopened because
Defendants’ Motion to Dismiss was untimely, the court improperly dismissed
some defendants on a Section 1915 review, and he did not have a “reasonable
time to respond” to the Magistrate Judge’s Report and Recommendation. (Doc.
30.) All of Plaintiff’s arguments are flawed. First, Defendants’ Motion to Dismiss
was filed within sixty days after they were served, which is within the permissible
time frame under the Federal Rules. See Fed. R. Civ. P. 12(a)(1)(A)(ii) (noting
that a defendant must serve an answer or responsive pleading within 60 days if
he has waived service). Second, Plaintiff has not provided the Court with any
reason to overturn the Court’s decision to dismiss Defendants Kelly, Foster, and
Singleton based on a Section 1915 review. Plaintiff’s bald assertion is insufficient
to justify reopening the judgment. Finally, Plaintiff has been notified and informed
of all proceedings throughout the case. There is no evidence that he lacked a
reasonable time to respond to any of the filings.
In sum, Plaintiff has not presented the Court with sufficient evidence to
reopen the judgment in this case under Rule 60(b). The type of relief Plaintiff
seeks is extraordinary, and Plaintiff has simply not met the standard required for
this type of relief.
MOTION TO STRIKE
A Motion to Strike, authorized by Rule 12(f), allows the Court to “strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” Fed. R. Civ. P. 12(f). In his Motion to Strike (Doc. 31),
Plaintiff argues that Defendants’ Motion to Dismiss should be struck based on his
denial that he failed to properly exhaust his administrative remedies. He further
alleges that Defendants and defense counsel have undermined due process and
that their defense is “frivolous.”
Plaintiff’s Motion misses the mark. A motion to strike is not the proper
vehicle to provide the relief that Plaintiff seeks. Even if it were, Plaintiff’s Motion is
premised on his argument that he fully exhausted his administrative remedies.
This issue is irrelevant because Plaintiff’s Motion was dismissed because Plaintiff
has three strikes. Thus, Plaintiff has not presented an argument that supports
granting his Motion to Strike. Thus, his Motion is denied.
Motion to Amend
In his Motion to Amend, Plaintiff asks the Court for leave to amend his
complaint pursuant to Rule 15(a). However, this request is improper because “…
Rule 15(a), by its plain language, governs amendment of pleadings before
judgment is entered; it has no application after judgment is entered.” Jacobs v.
Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (emphasis in
original). Final judgment was entered in this case on November 6, 2012, and
therefore, Plaintiff is unable to seek relief under Rule 15(a).
For the reasons stated above, Plaintiff’s Motion for Relief under Rule 60,
Plaintiff’s Motion to Strike, and Plaintiff’s Motion to Amend are all denied.
SO ORDERED, this 18th day of January, 2013.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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