Dewberry v. Third Judicial Circuit Court of Michigan

Filing 12

OPINION and ORDER Denying Plaintiff's 8 Motion for Relief. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAMIREZ DEWBERRY,
Case No. 2:17-cv-12677
Plaintiff,
HON. STEPHEN J. MURPHY, III
v.
THIRD JUDICIAL CIRCUIT COURT
OF MICHIGAN,
Defendant.
/
OPINION AND ORDER
DENYING PLAINTIFF'S MOTION FOR RELIEF [8]
In September 2017, the Court summarily dismissed Plaintiff's complaint brought
pursuant to 42 U.S.C. § 1983 because Plaintiff failed to state a claim upon which relief
could be granted. ECF 5. Now before the Court is Plaintiff's motion for relief from that
order pursuant to Federal Rule of Civil Procedure 60(b). For the reasons set forth
below, the Court will deny the motion.
Because Plaintiff filed a notice of appeal after filing his motion for relief, the Court
lacks jurisdiction to consider Plaintiff's present motion. A notice of appeal generally
"confers jurisdiction on the court of appeals and divests the district court of control over
those aspects of the case involved in the appeal." Marrese v. Am. Acad. of Orthopaedic
Surgeons, 470 U.S. 373, 379 (1985) (citing Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (per curiam)). The divestiture of jurisdiction includes the
jurisdiction to consider Rule 60(b) motions. Pickens v. Howes, 549 F.3d 377, 383 (6th
Cir. 2008) ("After an appeal of a trial court's final judgment has been perfected by the
filing of a notice of appeal, the trial court no longer has jurisdiction to grant a Rule 60(b)
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motion."). But to aid the appellate process, a district court may indicate whether it
believes that there should be relief from the judgment because then the case can be
remanded for the district court to grant relief. Id.
If the Court had jurisdiction, it would deny the motion. A Rule 60(b) motion is
properly denied when the movant attempts to relitigate the merits of a claim and the
allegations are unsubstantiated. Miles v. Straub, 90 F. App'x. 456, 458 (6th Cir. 2004).
Here, Plaintiff does not make any new arguments. Because the Court already
considered and rejected the merits of Plaintiff's claims, the Court would also deny the
present motion if it had jurisdiction.
WHEREFORE, it is hereby ORDERED that Plaintiff's motion for relief [8] is
DENIED.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: February 6, 2018
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 6, 2018, by electronic and/or ordinary mail.
s/ David Parker
Case Manager

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