Williams v. Eaves et al

Filing 124

ORDER denying as moot Plaintiff's 119 Motion for Leave to Appeal in forma pauperis; denying Plaintiff's 122 Motion for Rule 60(b) Relief. Signed by Chief Judge Lisa G. Wood on 2/23/2017. (ca)

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FRANKLIN L. WILLIAMS,
Plaintiff,

CIVIL ACTION NO.: 5:09-cv-102

ATTORNEY MARTIN H. EAVES;
RICHARD E. CURRIE; MELBA H.

FIVEASH;RONNIE H. MCQUAIG;and
ATTORNEY JIM B. MCGEE,III,
Defendants.

ORDER

Presently before the Court are Plaintiff's most recent

filings, a Motion for Leave to Appeal in Forma Pauperis and a
Motion for Rule 60(b) Relief.

Dkt. Nos. 119, 122.

For the

reasons which follow, the Court DENIES Plaintiff's Rule 60(b)
Motion and DISMISSES as moot Plaintiff's Motion to Proceed in

Forma Pauperis on Appeal.
I.

Motion for Rule 60(b) Relief

Plaintiff filed his Complaint on December 11, 2009.
No. 1.

Dkt

On March 1, 2010, the United States Magistrate Judge

issued a Report and recommended that the Court dismiss
Plaintiff's Complaint.

In so doing, the Magistrate Judge

stated:

This cause of action is one of the enormous number of

lawsuits Plaintiff has filed against the named

Defendants, either singly or in combination, which have
amounted to nothing more than a vehicle for Plaintiff
to harass these individuals on a habitual basis.

Plaintiff s Complaint is frivolous and appears to have
been filed for malicious purposes.

Dkt. No. 30, p. 4 & at n.l (collecting cases).

The Court

adopted this recommendation as the opinion of the Court on
May 13, 2010, dkt. no. 45, and entered judgment on May 18, 2010,
dkt. no. 46.

Since then. Plaintiff has filed numerous frivolous motions,

including a motion to amend filed the same date as the Court's
judgment, in an attempt to have the Court reconsider its
judgment of dismissal.

See Dkt. Nos. 47, 49, 52, 53, 55-63, 65-

68, 70, 71, 73-75, 77, 79, 85, 98, and 116.

The motions

presently before the Court are no different.
Although Plaintiff asserts he is entitled to relief
pursuant to Rule 60(b), he does not indicate which subsection of

this Rule entitles him to relief.^

Instead, he contends he is

entitled to relief pursuant to 28 U.S.C. § 1655. Dkt. no. 122,
p. 4.

^

Thus, Plaintiff's requests relief pursuant to Federal

In the title and on the first page of his Motion, Plaintiff mentions

the three strikes provision found at 28 U.S.C. § 1915(g).

Section
1915(g) provides: ^'In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal

in a court of the United States that was dismissed on the grounds that

it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of

serious physical injury." Plaintiff's Complaint was not dismissed
under this provision, though he is subject to it.

Rule of Civil Procedure 60(d)(2) (noting that nothing in Rule 60

limits

court's power to" ^'grant relief under 28 U.S.C. § 1655

to a defendant who was not personally notified of the action").
Section 1655 of Title 28 relates to absent defendants and,

by its very nature, is inapplicable to Plaintiff.

Even if

Plaintiff could utilize this statute, he has failed to show that

Defendants actually infringed on his constitutional rights or

that the purpose of filing this cause of action was anything
other than to harass Defendants.

Dkt. No. 30, p. 4.

Plaintiff s other rehashed arguments fail for the same reasons

set forth in the Magistrate Judge's Report and Recommendation
and echoed numerous times by this Court and the Eleventh Circuit

Court of Appeals.
117.

Id.; Dkt. Nos. 45, 48, 75, 83, 86, 94, 97,

In short. Plaintiff has once again failed to establish a

reason justifying reopening this Court's judgment.^
^

A motion for reconsideration, or a Federal Rule of Civil Procedure

59(e) motion, is ^'an extraordinary remedy, to be employed sparingly."
Smith ex rel. Smith v. Augusta-Richmond Cty., No. CV 110-126, 2012 WL
1355575, at *1 (S.D. Ga. Apr. 18, 2012) (internal citation omitted).
''A movant must set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision." Id. (internal
citation omitted). '''The only grounds for granting a Rule 59 motion
are newly-discovered evidence or manifest errors of law or fact."
Jacobs V. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th Cir.
2010) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)
(internal punctuation omitted)). "A Rule 59(e) motion cannot be used
to relitigate old matters, raise argument or present evidence that
could have been raised prior to the entry of judgment." Id. (quoting
Michael Linet, Inc. v. 'Village of Wellington, 408 F.3d 757, 763 (11th
Cir. 2005) (alterations omitted)). Plaintiff has not met the
standards of Rule 59(e) to show his entitlement to such an
extraordinary remedy.

Based on the foregoing, the Court DENIES Plaintiff s Motion
for Relief Pursuant to Rule 60(b).

This Court's Order dated May

13, 2010, remains the Order of the Court, and this case remains
CLOSED.

II.

Motion to Proceed in Forma, Pavperls on Appeal
Plaintiff has now filed his third Motion to Proceed in

Forma Pauperls on appeal.

As Plaintiff surprisingly has no

appeal pending at this time, the Court DISMISSES as moot
Plaintiff's Motion.

See Dkt. Nos. 107, 123.

To the extent that

Plaintiff seeks to appeal this Order, there are no non-frivolous

issues to raise on appeal, and an appeal would not be taken in
good faith.
24(a)(3).

See 28 U.S.C. § 1915(a)(3); Fed. R. App. P.

Consequently, the Court DENIES Plaintiff leave to

appeal in forma pauperis.
SO ORDERED, this

day of

LISjyGODBEY WOOD, CHIEF JUDGE
^UNIOTD STATES DISTRICT COURT
5UTHERN DISTRICT OF GEORGIA

, 2017.