Cobble v. Cobb County Police, et al
Filing
17
ORDER denying Plaintiff's 7 Request to Appeal in forma pauperis, Plaintiff's 8 Motion to Produce Documents is DENIED, Plaintiff's 9 Motion for Court to Order U.S. Marshals to Serve All Many Different Defendants is DENIED AS MOOT, Plaintiff's 10 Extraordinary Motion for New Civil Trial is DENIED, and Plaintiff's 13 Motion to Reverse Dismissal is DENIED. Signed by Judge Richard W. Story on 8/1/2013. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DANIEL ERIC COBBLE,
Plaintiff,
v.
COBB COUNTY POLICE DEPT.,
et al.
Defendants.
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CIVIL ACTION NO.
1:02-CV-02821-RWS
ORDER
This case comes before the Court on Plaintiff’s Request to Proceed in
Forma Pauperis [7], Motion to Produce Documents [8], Motion for Court to
Order U.S. Marshals to Serve All Many Different Defendants [9], Extraordinary
Motion for New Civil Trial [10], and Motion to Reverse Dismissal [13]. After
reviewing the record, the Court enters the following Order.
Backrgound
Plaintiff initiated the instant litigation on October 15, 2002, by filing a
Complaint with the United States District Court for the Northern District of
Georgia. (Compl., Dkt. [1] at 1 of 5.) Plaintiff appears to have petitioned for a
writ of habeus corpus. (See generally id.) Plaintiff’s Complaint was dismissed
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for frivolity. Plaintiff now moves for a new trial, a reversal of the dismissal, an
order compelling the U.S. Marshals Service to serve Defendants, and an order
compelling Defendants to produce documents. The Court now reviews these
motions.
Discussion
I.
Legal Standard
When reviewing a notice of appeal, a determination of the timeliness of
the notice is crucial. “[T]he timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007).
“Therefore, . . . we may not entertain an appeal that is out of time[.]” Green v.
Drug Enforcement Admin., 606 F.3d 1296, 1301 (11th Cir. 2010). The
jurisdictional requirement for filing a notice of appeal is, at the most, sixty (60)
days from the date the judgment was entered. Judgment against Plaintiff was
entered on November 7, 2002, and Plaintiff filed his request to appeal in forma
pauperis on June 24, 2013. Plaintiff has missed the window in which he can
appeal the prior judgment against him by a vast margin. However, plaintiffs
requesting to proceed in forma pauperis are held to a less stringent standard
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than those represented by attorneys, resulting in a less stringent pleading
standard.1 Accordingly, the Court will review Plaintiff’s motions on the merits.
A.
Request to Appeal In Forma Pauperis [7]
As stated above, Plaintiff has missed the window in which he could have
filed a notice of appeal for this case. Nonetheless, the Court now reviews
Plaintiff’s request to appeal in forma pauperis on the merits.
“Unless there is indisputably absent any factual or legal basis for the
wrong asserted in the complaint, the trial court, in a close case, should permit
the claim to proceed at least to the point where responsive pleadings are
required.” Neitzke v. Williams, 490 U.S. 319, 323 (1989) (internal quotations
and citations omitted). After reviewing both Plaintiff’s original Complaint and
the facts alleged in his recent motions, the Court finds that, even under the more
lenient in forma pauperis standard, Plaintiff has failed to assert any claim upon
which relief can be granted. Accordingly, based on both the procedural and
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“The frivolousness standard, authorizing sua sponte dismissal of an in forma
pauperis complaint “only if the petitioner cannot make any rational argument in law or
fact which would entitle him or her to relief,” is a “more lenient” standard than that of
Rule 12(b)(6)[.]” Neitzke v. Williams, 490 U.S. 319, 322-23 (1989) (quoting Williams
v. Faulkner, 837 F.2d 304, 307 (7th Cir. 1988)).
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substantive defects of Plaintiff’s claims, Plaintiff’s Request to Appeal In Forma
Pauperis is due to be DENIED.
B.
Motion to Produce Documents [8]
As stated above, this case has already been closed and is only before the
Court on an untimely request to appeal. As the discovery period has long since
closed, Plaintiff’s Motion to Produce Documents is untimely. Accordingly,
Plaintiff’s Motion to Produce Documents is due to be DENIED.
C.
Motion for Court to Order U.S. Marshals to Serve Defendants [9]
Plaintiff asks that the Court order service of documents. However, at this
time there are no documents to be served on Defendants. Thus, Plaintiff’s
Motion for Court to Order U.S. Marshals to Serve Defendants is due to be
DENIED AS MOOT.
D.
Extraordinary Motion for New Civil Trial [10]
Plaintiff has moved the Court for a new trial. Pursuant to Federal Rule of
Civil Procedure (“Rule”) 59, “[a] motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P.
59(e). “To help preserve the finality of judgments, a court may not extend the
time to file a Rule 59(e) motion.” Green, 606 F.3d at 1300 (citing Fed. R. Civ.
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P. 6(b)(2)). Plaintiff filed the motion over ten years after judgment was entered
against him, which vastly exceeds the twenty-eight day limit set forth by the
statute. If the Court construes Plaintiff’s motion as one under Rule 59,
Plaintiff’s Extraordinary Motion for New Civil Trial is untimely, and therefore
due to be DENIED.
If the Court construes Plaintiff’s motion as a motion for relief from
judgment, his request would be governed by Rule 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); [or] (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party[.]
Fed. R. Civ. P. 60(b). Construing Plaintiff’s motion as one for relief from
judgment under Rule 60, the Court notes that Plaintiff stated he recently
discovered the fact that his “former lawyer filed a motion for general plea of
innocence by insanity in 2002[,]” and that he had not discovered this fact until
2012 because he thought he was in the courtroom for all proceedings so he “had
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no reason to read trial transcripts until [he] got real board [sic] in 2012[.]” (Pl.’s
Extraordinary Mot. for New Civil Trial, Dkt. [10] ¶ 3.)
The Court will construe this to mean Plaintiff is arguing he has newly
discovered evidence and that the Court should grant him relief from judgment
under Rule 60(b)(2). First, Plaintiff’s lawyer’s entering of a “general plea of
innocence by insanity” (id.) is not a relevant fact to this motion or to Plaintiff’s
original Complaint. As such, it would be inappropriate for the Court to grant
Plaintiff relief from judgment based on this fact. Additionally, based on the
facts set forth in the motion, the Court finds that Plaintiff’s failure to discover
this fact does not fall within the exception created by Rule 60(b)(2) for evidence
that could not have been found by exercising reasonable diligence within the
twenty-eight (28) day time limit set forth in Rule 59. Plaintiff had over a
decade to read his trial transcript or speak to his lawyer about this matter. As
such, Plaintiff’s motion fails on its merits.
The Court also notes that even if Plaintiff’s discovery of new, relevant
evidence falls under the Rule 60(b)(2) framework, Rule 60(c)(1) states that “[a]
motion under Rule 60(b) must be made within a reasonable time--and for
reasons (1), (2), and (3) no more than a year after the entry of the judgment or
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order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Plaintiff has
greatly exceeded the one-year time limit for filing a Rule 60(b) motion, waiting
over a decade since judgment was entered against him to do so. Therefore,
Plaintiff’s motion is untimely, and as such is due to be DENIED.
E.
Motion to Reverse Dismissal [13]
The Court construes Plaintiff’s motion to be a motion for reconsideration
of the dismissal of his claim on the basis of frivolity. “The only grounds for
granting a motion for reconsideration are newly-discovered evidence or
manifest errors of law or fact. A motion for reconsideration cannot be used to
relitigate old matters, raise arguments, or present evidence that could have been
raised prior to the entry of judgment.” Smith v. Ocwen Fin., 488 F. A’ppx 426,
428 (11th Cir. 2012) (citing Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.
2007)). After reviewing the record, the Court finds that Plaintiff has not shown
that there is any newly-discovered evidence relevant to this case and that
Plaintiff has not raised the issue of there being any manifest errors of law or
fact. Accordingly, Plaintiff’s Motion to Reverse Dismissal is due to be
DENIED.
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Conclusion
In accordance with the foregoing, Plaintiff’s Request to Appeal In Forma
Pauperis [7] is DENIED, Plaintiff’s Motion to Produce Documents [8] is
DENIED, Plaintiff’s Motion for Court to Order U.S. Marshals to Serve All
Many Different Defendants [9] is DENIED AS MOOT, Plaintiff’s
Extraordinary Motion for New Civil Trial [10] is DENIED, and Plaintiff’s
Motion to Reverse Dismissal [13] is DENIED.
SO ORDERED, this 1st
day of August, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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