KAPLAN v. UNITED STATES OF AMERICA

Filing 35

OPINION FILED. Signed by Judge Noel L. Hillman on 3/2/16. (js)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD KAPLAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Nos.

13-2554
13-5295
14-1007
14-1740

(NLH),
(NLH),
(NLH),
(NLH),

Crim. Nos.

07-329
08-581

(NLH),
(NLH)

OPINION

APPEARANCES:
Richard Kaplan, # 28621-050
F.C.I. Otisville
P.O. Box 1000
Otisville, NY 10963
Petitioner, Pro se

HILLMAN, District Judge
Presently before the Court are the motions of Petitioner
Richard Kaplan requesting that this Court provide him an
evidentiary hearing on his previously denied motion to reopen
his habeas and civil rights cases which Petitioner filed in both
of his criminal cases as well as in one of his civil actions
brought pursuant to 42 U.S.C. § 1983 and in three of his habeas
corpus dockets.

(Docket No. 07-329 at ECF No. 63; Docket No.

08-581 at ECF No. 86; Docket No. 14-1740 at ECF Nos. 24-25;
Docket No. 13-2554 at ECF Nos. 33-34; Docket no. 13-5295 at ECF
Nos. 34-35; Docket No. 14-1007 at ECF Nos. 23-24).

This court

construes these motions as motions for reconsideration of this
Court’s order denying Petitioner’s previous motion pursuant to
Rule 60(b) for relief from this Court’s dismissal of
Petitioner’s various matters.

(See Docket Nos. 13-2554 at 26-

27; Docket Nos. 14-1007 at 16-17; Docket Nos. 13-5295 at 27-28).
For the following reasons, this Court denies Petitioner’s
motions.
I.

BACKGROUND
Petitioner in his current motion seeks reconsideration of

this Court’s order denying his motion to reopen his previous
habeas and civil rights cases, which this Court construed as a
motion for relief from judgement under Federal Rule of Civil
Procedure 60(b).

In this Court’s most recent opinion denying

several of Petitioner’s motion, this Court summarized the
background of this motion as follows:
In October 2015, following a filing in an
unrelated case, Petitioner filed a motion
“directing all courts to reverse [their]
erroneous
decisions”
as
to
Petitioner’s
various cases, a motion which this Court
construed as a motion for relief from judgment
under Rule 60(b) of the Federal Rules of Civil
Procedure.
Id.
at
1-2.
Petitioner
essentially argued that he should be relieved
from this Court’s dismissal of three of his
prior habeas matters on time-bar grounds
because he had “newly” discovered that a
witness in one of his criminal convictions was
allegedly a government agent and not an
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informant as previously stated. Id. at 2-3.
Petitioner’s
assertions
and
allegations,
however, were based upon a misreading of an
order filed by Magistrate Judge Clark in
another of Petitioner’s civil cases, Kaplan v.
Garafalo, Docket No. 15-1150.
Id.
Because
Petitioner’s Rule 60(b) motion was based on a
false premise arising out of that misreading,
and because Petitioner had in any event failed
to show that he was entitled to relief under
the rule, this Court denied Petitioner’s Rule
60(b) motion, as well as several related
motions. Id. at 3-4.
After this Court had reached a decision
on Petitioner’s Rule 60(b) motion, but before
the opinion and order denying the 60(b) motion
and several related motions was filed,
Petitioner filed the instant motion on
November 30, 2015.
In [that] motion,
Petitioner request[ed] that this Court appoint
him counsel, hold an evidentiary hearing, and
order that Petitioner be transported to that
hearing so that Petitioner [could] show that
he
[was]
entitled
to
relief
on
his
[previously]-denied 60(b) motion.
Kaplan v. United States, Civil Nos. 13-2554, 13-5295, 14-1007,
14-1740, and Crim. Nos. 07-329, 08-581, 2016 WL 155034, at *1
(D.N.J. Jan. 12, 2016).

This Court denied Petitioner’s November

30, 2015, motions on January 12, 2016.

Id.

Petitioner now

seeks reconsideration of this Court’s prior orders on his 60(b)
and related motions, arguing that this Court was mistaken in its
decisions denying those motions.
II.

DISCUSSION
Petitioner now seeks to have this Court reconsider its
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orders denying his numerous motions related to his Rule 60(b)
motion to reopen his various closed cases.

Motions for

reconsideration are governed by Local Rule of Civil Procedure
7.1(i).

“A judgment may be altered or amended under Rule 7.1(i)

if the movant shows at least one of the following grounds:

‘(1)

an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court [issued its order]; or (3) the need to correct a clear
error of law or fact to prevent manifest injustice.’”

Delanoy

v. Twp. Of Ocean, No. 13-1555, 2015 WL 2235103, at *2 (D.N.J.
May 12, 2015) (quoting Max’s Seafood Café v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999)).

Reconsideration motions should be

granted sparingly and only when the petitioner has met the high
standard required to merit such relief.

Id.

Reconsideration

motions may not be used to raise arguments or evidence that
could previously have been raised prior to the entry of judgment
but were not, nor may they be used to relitigate old matters.
Id.

Generally, courts should only grant such motions where the

Court’s prior decision “overlooked a factual or legal issue that
may alter the disposition of the matter.”

Id.

In his current reconsideration motion, Petitioner again
repeats the same allegations which this Court has previously

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held insufficient to warrant the reopening of his dismissed
cases, most of which center on Petitioner’s misreading and
misunderstanding of a magistrate judge’s order filed in an
unrelated § 1983 matter.

As these arguments were previously

raised and rejected as without factual support or merit,
Petitioner essentially seeks to relitigate the same factual
allegations which this Court has previously rejected, and as
such Petitioner has presented no legitimate basis for
reconsideration of this Court’s prior orders.

Id.

The only arguably new information or argument Petitioner
presents in his current motion is his assertion that his
original motions, which did not provide any information as to
the legal basis on which Petitioner requested that this cases be
reopened, were not based on Rule 60(b) but rather were intended
to be raised under the All Writs Act, 28 U.S.C. § 1651.
Docket No. 14-1007 at ECF No. 23 at 22).

(See

The All Writs Act,

however, is not a talismanic defense against any and all adverse
rulings.

See, e.g., United States v. Ramsey, --- F. App’x ---,

---, 2016 WL 335848, at *1 (3d Cir. Jan. 28, 2016) (“where a
statute specifically addresses the particular issue at hand, it
is that authority, and not the All Writs Act, that is
controlling”); see also Massey v. United States, 581 F.3d 172,

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174 (3d Cir. 2009).

The All Writs Act is instead “a residual

source of authority to issue writs that are not otherwise
covered by a statute.”

Massey, 581 F.3d at 174 (quoting

Pennsylvania Bureau of Corr. V. U.S. Marshals Serv., 474 U.S.
34, 43 (1985)).
To the extent that Petitioner’s original actions challenged
his various convictions and sentences, those actions are
controlled by 28 U.S.C. § 2255, and are therefore not properly
brought under the All Writs Act.

Id.

Likewise, to the extent

that Petitioner sought damages for alleged violations of his
constitutional rights, such claims are governed by 42 U.S.C. §
1983 and are likewise outside of the scope of the All Writs Act.
Ramsey, --- F. App’x at ---, 2016 WL 335848 at *1.

Thus, all of

Petitioner’s claims are governed by statutory provisions other
than the All Writs Act, and are not subject to revival under the
All Writs Act where they have already been dismissed under the
proper statutory authority.

As Petitioner’s original motions

sought to reopen his previously denied and dismissed habeas and
civil cases, what Petitioner sought was relief from judgment,
the proper vehicle for which is Rule 60(b).

See Gonzalez v.

Crosby, 545 U.S. 524, 528 (2005) (“Rule 60(b) allows a party to
seek relief from a final judgment, and request reopening of his

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case, under a limited set of circumstances including fraud,
mistake, and newly discovered evidence”).

As such, it is clear

that this Court acted appropriately and correctly applied the
law in construing Petitioner’s earlier motion as a motion for
relief from judgment under Rule 60(b), and Petitioner’s All
Writs Act argument provides no basis for reconsideration of this
Court’s prior orders.

Delanoy, 2015 WL 2235103 at *2.

As

Petitioner’s reconsideration motions are without merit, this
Court will deny them.
III.

CONCLUSION
For the reasons stated above, Petitioner’s reconsideration

motions (Docket No. 07-329 at ECF No. 63; Docket No. 08-581 at
ECF No. 86; Docket No. 14-1740 at ECF Nos. 24-25; Docket No. 132554 at ECF Nos. 33-34; Docket no. 13-5295 at ECF Nos. 34-35;
Docket No. 14-1007 at ECF Nos. 23-24) are DENIED.

An

appropriate order follows.

_s/ Noel L. Hillman__
Hon. Noel L. Hillman,
United States District Judge

March 2, 2016
At Camden, New Jersey

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