Castro v. Morris et al
Filing
23
MEMORANDUM OPINION AND ORDER signed by Senior Judge Charles R. Simpson, III on 5/28/13 denying 21 Motion to Reconsider; denying 22 Motion for Hearing or Oral Argument. cc:counsel, Pltf, pro se; Defendants (SJS) Modified on 5/29/2013 (SJS).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
RUTH CASTRO
PLAINTIFF
v.
CIVIL ACTION NO. 3:12CV-74-S
HON. JUDGE GEOFFREY MORRIS et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
On initial review the Court dismissed Plaintiff’s complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) for failure to state a claim upon which relief may be granted. Thereafter,
Plaintiff filed two motions to reconsider her case (DNs 15 & 16). On September 12, 2012, the
Court entered a Memorandum Opinion and Order denying Plaintiff’s motions to reconsider
(DN 18). On January 7, 2013, Plaintiff filed a third motion to reconsider, and, the following day,
filed a motion for hearing or oral argument (DNs 21 & 22). These new motions are presently
before the Court.
In her motion to reconsider, Plaintiff states the following:
[A] new witness-Ashley Michael’s from the Public Defender’s Office has come
forward with new information, confirming that I was being set up by my own P.D.
Office Attorney in favor of Michael McIntire, Matt Glass (Metro Detective) and
other’s and I Recorded the conversations with this Attorney that came forward
unsolicited. *judges are not Amune from civil action when violating civil Rights,
Civil Liberties. Basis of civil action as a tort the unjustified detention of a person
. . . This offences do not only one committed by officers, but can be people merely
asserting improper legal authority to Detain-making a civil violation, in false charges
that again got Dismiss as a “contract Dispute” in order to intimidate a witness (Ruth
Castro) in an investigation . . . Any unlawful exercise or show of force by which a
person is compelled to remain where he/she does not wish to remain. . . . P.D.
Attorney in my case has taken further actions against me and now I have a witness
for this Court and other Courts and Request Respectfully This Court to hear my case.
In her motion for hearing or oral argument, Plaintiff states that she is requesting a new hearing
because of “[n]ew evidence of audio recordings of testimony of actions taken against me by
people in position of authority.” Attached to the motion for hearing is a request to re-open a
state criminal action which Plaintiff indicates she intended to file in the state action. Therein she
requests the state court to expunge the false charges filed against her and contends that the
accuser in the criminal case lied and committed perjury.
Although Plaintiff fails to state the authority upon which she seeks reconsideration,
neither the motion for reconsideration nor the motion for a hearing or oral argument were filed
within 28 days of the entry of judgment in this case. Thus, the Court construes them as being
brought under Rule 60 of the Federal Rules of Civil Procedure (Rule 60). Feathers v. Chevron
U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998) (“Where a party’s Rule 59 motion is not filed
within the mandatory . . . period, it is appropriate for a court to consider the motion as a motion
pursuant to Rule 60 for relief from judgment.). Rule 60(b) of the Federal Rules of Civil
Procedure provides relief from judgment in six instances: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or
other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; or (6) any other reasons justifying relief from the operation of
the judgment. “[T]he party seeking relief under Rule 60(b) bears the burden of establishing the
grounds for such relief by clear and convincing evidence.” Info-Hold, Inc. v. Sound Merch.,
Inc., 538 F.3d 448, 454 (6th Cir. 2008). Relief under Rule 60(b) may only be granted in
exceptional circumstances. McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491,
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502-03 (6th Cir. 2000). “Relief under Rule 60(b), moreover is ‘circumscribed by public policy
favoring finality of judgments and termination of litigation.’” Doe v. Lexington-Fayette Urban
Cnty. Gov’t, 407 F.3d 755, 760 (6th Cir. 2005) (quoting Waifersong Ltd. v. Classic Music
Vending, 976 F.2d 290, 292 (6th Cir. 1992)). To succeed under Rule 60(b)(2) based on newly
discovered evidence, the “movant must demonstrate (1) that it exercised due diligence in
obtaining the information and (2) [that] the evidence is material and controlling and clearly
would have produced a different result if presented before the original judgment.” Good v. Ohio
Edison Co., 149 F.3d 413, 423 (6th Cir. 1998) (quotation and citation omitted). The newly
discovered evidence may not be “merely impeaching or cumulative.” Id.
In the present case, Plaintiff fails to meet her burden under Rule 60(b). She fails to state
when the new evidence upon which she relies was discovered. Plaintiff fails to set forth any
facts to support that she exercised due diligence in obtaining the new evidence. Further, the
motions filed by Plaintiff do not demonstrate that this newly discovered evidence upon which
Plaintiff relies is material and controlling and would have resulted in a different judgment. For
these reasons, Plaintiff’s motion under Rule 60(b)(2) fails. Rule 60(b)(6) gives the Court broad
authority to grant relief if justice requires; however, it can only do so in exceptional or
extraordinary circumstances not addressed by the first five clauses of the rule. See Hopper v.
Euclid Manor Nursing Home, 867 F.2d 291, 294 (6th Cir. 1989) (“This Circuit adheres to the
view that courts should apply Rule 60(b)(6) only in exceptional or extraordinary circumstances
which are not addressed by the first five numbered clauses of the Rule.”). Plaintiff also fails to
present extraordinary circumstances which would allow relief under Rule 60(b)(6).
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Accordingly, Plaintiff’s motion to reconsider (DN 21) and her motion for hearing or oral
argument (DN 22) are DENIED.
Date:
May 28, 2013
C al R Smpo I , ei J d e
h r s . i sn I Sno u g
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U i dSae Ds i C ut
nt tt ir t o r
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cc:
Plaintiff, pro se
Defendants
4411.003
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