Smith v. Owens et al

Filing 53

ORDER denying as untimely 52 Motion to Re-Open Order of the District Court Judge. Ordered by U.S. District Judge HUGH LAWSON on 3/4/2014. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

DONALD FRANK SMITH,
Plaintiff,
v.

Civil Action No. 7:12-CV-23 (HL)

DEPARTMENT OF CORRECTIONS
VALDOSTA STATE PRISON, et al.,
Defendants.

ORDER
Before the Court is Plaintiff’s Motion to Re-Open Order of the District Court
Judge (Doc. 52) brought under Federal Rule of Civil Procedure 60. The motion
appears to be a request that the Court provide relief from its Order (Doc. 19)
denying Plaintiff’s motion for the appointment of counsel (Doc. 16). The motion is
denied as untimely. The Court construes Plaintiff’s Rule 60 motion as falling
under Rule 60(b) since he does not base his argument for relief on any of the
reasons listed in subpart (a). However, any motion brought under subpart (b)
“must be made within a reasonable time” of the entry of the order from which the
party seeks relief. Fed. R. Civ. Pro. 60(c). The Order denying Plaintiff’s request
for the appointment of counsel was entered on June 27, 2012. Even if there was
some delay before Plaintiff received that Order because he was moved to a

different prison, he clearly knew the Court had not appointed an attorney to
represent him and should have sought relief before now.
Even if Plaintiff’s motion were timely filed, it must still be denied for it does
not state any grounds for the Court to provide relief from the earlier Order.
Plaintiff does not contend he discovered new evidence for the Court’s
consideration or that the earlier Order was the result of fraud, mistake, or any of
the other reasons listed in Rule 60(b). Rule 60 motions are subject to a
“significantly higher standard” than that applied to motions brought under Federal
Rule of Civil Procedure 59(e), which “may not be used to relitigate old matters,
raise arguments or present evidence that could have been raised prior to the
entry of judgment.” Sherrod v. Palm Beach Cty. School Dist., 237 F. App’x 423,
425 (11th Cir. 2007) (internal quotations and citations omitted). Because
Plaintiff’s Rule 60 motion does nothing more that re-state arguments that should
have been raised in his initial motion for the appointment of counsel, it must be
denied.

SO ORDERED, this the 4th day of March, 2014.

s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE

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