Bishop et al v Lewis et al
Filing
27
MEMORANDUM AND ORDER denying 23 Motion of plaintiff to vacate or modify ; denying as moot 26 Motion of plaintiff to strike. Signed by Judge William M Nickerson on 9/6/12. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SYLVONTAE BISHOP et al.
v.
MIKE LEWIS et al.
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Civil Action No. WMN-10-3640
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MEMORANDUM & ORDER
This action arises out of a traffic stop that occurred on
December 28, 2010, in Wicomico County, Maryland.
In their
Amended Complaint, Plaintiffs brought claims under 42 U.S.C. §§
1981 and 1983 and under Title VI of the 1964 Civil Rights Act.
On May 4, 2011, this Court granted motions to dismiss which had
been filed by the Maryland State Police and by Defendant Mike
Lewis.
ECF No. 19.
The Court granted the motion as to the § 1981 and § 1983
claims against the Maryland State Police and against Lewis in
his official capacity on the ground of Eleventh Amendment
immunity.
The Court granted the motion as to the Title VI claim
against the Maryland State Police1 and the claims against Lewis
in his individual capacity based upon a lack of sufficient
1
To the extent Plaintiffs were attempting to bring a Title VI
claim against Defendant Lewis in his individual capacity, the
Court found that he was not a proper defendant for such a claim.
allegations in the Amended Complaint to support the claims.
In
ruling on the motions to dismiss, the Court noted the
“remarkable lack of care” employed by Plaintiffs’ counsel in his
pleadings.
Id. at 13.
In the order granting the motions, the
Court permitted Plaintiffs ten days in which to file another
amended complaint.
The Court explicitly cautioned that, should
Plaintiffs fail to file such an amended complaint within ten
days, “the dismissal of the current Amended Complaint will be
with prejudice.”
ECF No. 21, ¶ 2.
No amended complaint was
filed within the period allowed.
On October 14, 2011, Plaintiff Vernon J. Leftridge, Jr.
submitted a second Amended Complaint for filing.
The Court
returned the proffered pleading, however, noting that the case
was ordered dismissed on May 4, 2011, and Plaintiffs were given
just 10 days to file an amended pleading.
The Court also noted
that Plaintiff Sylvontae Bishop did not sign the proffered
pleading.
As a non-attorney, Plaintiff Leftridge cannot offer
pleadings on behalf of anyone but himself.
See Local Rule
101(a).
More than six weeks later, on December 2, 2011, Leftridge
filed a second suit in this Court based upon the same traffic
stop.
In this new suit, in addition to Lewis, Leftridge named
Kelly Matthews, one of the officers present during the traffic
stop, and several “John Doe” officers as defendants.
2
Leftridge
v. Matthews, Civ. No. ELH-11-3499 (D. Md.).
was assigned to Judge Ellen Hollander.
This second case
On April 18, 2012, Judge
Hollander issued a memorandum and order which, inter alia,
dismissed some of the claims in that action on res judicata
grounds, referencing the undersigned’s May 4, 2011, Memorandum
and Order.
Civ. No. ELH-11-3499, ECF No. 33.
In denying
Leftridge’s motion for reconsideration of that decision, Judge
Hollander noted that the dismissal of those claims could not be
collaterally attacked in the action pending before her, but only
by a Rule 60 motion in the above captioned action, Civil Action
No. WMN-10-3640.
Civ. No. ELH-11-3499, ECF No. 39.
On May 9, 2012, Leftridge, now proceeding pro se, filed a
pleading which he captioned, “Plaintiffs’2 Rule 59 and Rule 60
Motions to Vacate and/or Modify Judgment Against the Official
State Defendants to Without Prejudice and Vacate Mike Lewis
Individual Capacity.”
ECF No. 23.
The gist of this pleading is
Leftridge’s contention that when opposing the motions to dismiss
his counsel was experiencing severe personal and professional
issues and, as a result, provided Plaintiffs incompetent
representation.
Noting the undersigned’s criticism of
Plaintiffs’ counsel’s pleadings, Leftridge suggests that the
2
It appears that Leftridge is attempting to seek relief on
behalf of himself and Sylvontae Bishop but the pleading was only
signed by Leftridge. As noted above, Leftridge, as a nonlawyer, can only represent his own interests.
3
Court should have recognized counsel’s deficiencies and
appointed Plaintiffs new counsel, sua sponte.
As an initial matter, the Court finds that Leftridge’s
motion was not timely, whether considered under Rule 59 or Rule
60.
As noted above, the Order which Leftridge now seeks to undo
was issued on May 4, 2011.
As also noted, Leftridge filed his
Rule 59/Rule 60 motion on May 9, 2012.
Under Rule 59, any
motion to alter or amend a judgment must be filed within 28
days.
Rule 59(e).
Under Rule 60, any motion for relief from a
final judgment, order, or proceeding “must be made within a
reasonable time” and, if for mistake, inadvertence, surprise, or
excusable neglect “no more than a year after the entry of the
judgment or order or the date of the proceeding.”
Rule
60(c)(1).
Here, Leftridge acknowledges that “[o]n or about June 2,
2011, [he] received notice[] from his attorney [] that he has
been experiencing severe personal and professional issues and
could not proceed with our Complaint before the Court.”
23 at 3.
ECF No.
Inexplicably, Leftridge waited more than eleven months
after learning of his attorney’s difficulties before filing the
instant motion.
It is readily apparent that the instant motion
4
was filed neither within a reasonable time nor within a year of
the order from which Leftridge seeks relief.3
Were the motion timely, it is nonetheless without merit.
It is well established that the incompetence of counsel is not
grounds for relief under Rule 60(b).
As the Supreme Court has
stated,
There is certainly no merit to the contention that
dismissal of petitioner’s claim because of his
counsel’s unexcused conduct imposes an unjust penalty
on the client. Petitioner voluntarily chose this
attorney as his representative in this action, and he
cannot now avoid the consequences of the acts or
omissions of his freely selected agent. Any other
notion would be wholly inconsistent with our system of
representative litigation, in which each party is
deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, rulings,
notice of which can be charged upon the attorney.
Link v. Wabash Railroad Co., 370 U.S. 626 (1962).4
See also
Evans v. United Life & Accident Ins. Co., 871 F.2d 466, 472 (4th
Cir. 1989) (holding that “a lawyer’s ignorance or carelessness
do not present cognizable grounds for relief under [Rule]
60(b)”).
3
In arguing that his motion was filed within a year of the
challenged action, Leftridge references an October 18, 2011,
entry on the docket: “Civil Case Terminated.” This entry is
simply a clerical entry made by the Clerk’s Office to signify
that this is no longer an active docket.
4
Leftridge appears not only to accept this principle but seems
to have wholly embraced it. In pointing out what he perceives
to be the misdeeds of Defendants’ counsel in this and in Civil
Action No. ELH-11-3499, Leftridge quotes this language from
Lust. See ECF No. 25 at 11.
5
In opposing Leftridge’s motion, Defendants also challenged
the underlying merits of the claims asserted in the Amended
Complaint.
In support of that challenge, Defendants submitted a
video recording on CD of the traffic stop in question to
demonstrate that Plaintiffs’ allegations regarding the conduct
of the officers are unsupported.
In addition to replying to
that opposition, Leftridge filed a “Motion to Dismiss & Motion
to Strike Defendants’ Opposition Docket Entry No. 24 in Response
to Plaintiffs’ Motion for Rule 59 & Rule 60 Motion to Vacate
Judgment and Motion for Order that State Defendants Submit
Declarations and Affadavits (sic) to Their CD Material Exhibit.”
ECF No. 26.
The Court did not need to consider the evidence
submitted by Defendants and thus will simply deny this motion as
moot.
Accordingly, it is this 6th day of September, 2012, by
the United States District Court for the District of Maryland,
ORDERED:
1) That Plaintiff Leftridge’s motion to vacate or modify,
ECF No. 23, is DENIED;
2) That Plaintiff Leftridge’s motion to strike, ECF No. 26,
is DENIED as MOOT; and
3) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to Plaintiff Vernon Leftridge and all
counsel of record.
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_______________/s/________________
William M. Nickerson
Senior United States District Judge
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