Miller v. Smith
MEMORANDUM & ORDER denying 19 Motion to Vacate; For the foregoing reasons, Plaintiff's motion to vacate the judgments in case numbers 12-CV-4159, 12-CV-4378, 12-CV-4430, 12-CV-4466 is DENIED. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 10/3/2013. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
COUNTY OF NASSAU, MICHAEL SPOSATO,
Sheriff of Nassau County, C/O SAEED,
C/O KAROL, SARGEANT CAMINETTI, and
ALFRED E. SMITH, Commissioner of the
New York State Commission of
-againstCOUNTY OF NASSAU, MICHAEL J. SPOSATO,
Sheriff, MICHAEL GOLIO, Captain, INV.
GARCIA, INV. JANE DOE, INV. MORRIS,
INV. HENDERSON, INV. JOHN DOE, CORPORAL
JOHN DOE, CORPORAL MARCIANO, CORR.
OFFICER MURPHY, CORR. OFFICER MENDEZ,
CORR. OFFICER JOHN DOE #1, CORR. OFFICER
HUBER, CORR. OFFICER BAUER, CORR. OFFICER
JOHN DOE #2, CORR. OFFICER #3, CORR.
OFFICER #4, CORR. OFFICER DeMANITO, CORR.
-againstCOUNTY OF NASSAU, MICHAEL SPOSATO,
Sheriff, ARMOR CORRECTIONAL HEALTH,
INC., DR. KAY, MD, Armor Corr.
Health, DR. OMANU, MD, Armor Corr.
Health, DR. VINCENT MANETTI, MD,
Armor Corr. Health, Inc., NURSING
ADMINSTRATOR HAILEY, Armor Corr.
Health, Inc., DR. SANTERELLI, DDS,
Armor Corr. Health, Inc.,
Daniel Miller, pro se
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
All other defendants
Pablo Fernandez, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
SEYBERT, District Judge:
Pending before the Court is a single letter motion filed
by pro se Plaintiff Daniel Miller (“Plaintiff”), seeking vacatur
of the judgments of dismissal in case numbers 12-CV-4159, 12-CV4378, 12-CV-4430, 12-CV-44661 pursuant to Rule 60(b) of the Federal
The Court notes that this isn’t a consolidated action. However,
Rules of Civil Procedure.
For the following reasons, Plaintiff’s
motion is DENIED.
Plaintiff commenced the above-captioned cases in August
proceed in forma pauperis. The Court, however, in each case denied
Plaintiff’s applications to proceed in forma pauperis because he
had more than “three strikes” under 28 U.S.C. § 1915(g) and had
not alleged that he was under imminent danger of serious physical
Plaintiff ultimately failed to pay the filing fee, and
all four actions were dismissed in October 2012.
appealed case numbers 12-CV-4378 and 12-CV-4430, and the Second
Circuit denied Plaintiff’s appeals, stating that they “lack[ed] an
arguable basis in law or fact.” (Case No. 12-CV-4378, Docket Entry
18; Case No. 12-CV-4430, Docket Entry 14.)
Plaintiff now seeks vacatur pursuant to Rule 60(b) on
the grounds that he had only two “strikes”--not three.
Standard of Review
Rule 60(b)(1) of the Federal Rules of Civil Procedure2
as Plaintiff filed one motion to address the dismissal of all
four actions, to conserve time and resources the Court is
issuing only one Order.
Although Plaintiff states that he is bringing this motion
pursuant to Rule 60(b)(2) on the grounds of newly discovered
“permits a district court to grant relief from a judgment based on
‘mistake, inadvertence, surprise, or excusable neglect.’”
v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011)
FED. R. CIV. P.
interpreted “mistake” to include both errors of a party or his
representatives, see Montco, Inc. v. Barr (In re Emergency Beacon
Corp.), 666 F.2d 754, 759 (2d Cir. 1981), and mistakes of law or
fact made by the district court, see Gey Assocs. Gen. P’ship v.
Assocs. (In re 310 Assocs.), 346 F.3d 31, 35 (2d Cir. 2003).
Although district courts have discretion in evaluating
Rule 60(b) motions, relief under this provision is extraordinary
and should be granted only in exceptional circumstances.
United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d
Cir. 2001) (“A motion for relief from judgment is generally not
favored and is properly granted only upon a showing of exceptional
circumstances.”); Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)
(“Since 60(b) allows extraordinary judicial relief, it is invoked
only upon a showing of exceptional circumstances.”). Such a motion
may not be used to repackage or relitigate arguments and issues
already considered by the district court, see Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); cf. Stevens v.
Miller, 676 F.3d 62, 67 (2d Cir. 2012) (“In no circumstances . . .
evidence, the proper subsection is subsection (1).
may a party use a Rule 60(b) motion as a substitute for an appeal
it failed to take in a timely fashion.”), and the burden of proof
is on the party seeking relief from judgment, see Int’l Bhd. of
Teamsters, 247 F.3d at 391.
The Court will address the judgments that Plaintiff
appealed separately from the judgments that he did not appeal.
Case Numbers 12-CV-4378 and 12-CV-4430: The Judgments
Affirmed by the Circuit
appellate court has once decided an issue, the trial court, at a
later stage of the litigation, is under a duty to follow the
Syracuse, 673 F.3d 141, 147 (2d Cir. 2012) (alteration in original)
(internal quotation marks and citation omitted).
rule prevents re-litigation in the district court not only of
appellate court’s mandate,’”
Id. (quoting Yick Man Mui v. United
States, 614 F.3d 50, 53 (2d Cir. 2010)), or “of issues that fall
within the scope of the judgment appealed from . . . but not
raised,” ResQNet.com, Inc. v. Lansa, Inc., 828 F. Supp. 2d 688,
696 (S.D.N.Y. 2011) (omission in original) (internal quotation
Underwriters Ins. Co., 758 F.2d 50, 52 (2d Cir. 1985) (“Our
previous ruling was the law of the case, and the district judge
correctly found that it had no jurisdiction to review an appellate
court’s decision.” (citation omitted)).
Here, the Circuit’s summary order affirming this Court’s
Order dismissing Plaintiff's Complaints in case numbers 12-CV-4378
and 12-CV-4430 bars re-litigation of the issues decided therein.
Accordingly, to the extent that Plaintiff seeks vacatur of the
judgments in those cases, his motion is DENIED.
Case Numbers 12-CV-4159 and 12-CV-4466: Judgments that
Were Not Appealed to the Circuit
Although the Circuit’s mandate affirming the Court’s
decisions in case numbers 12-CV-4378 and 12-CV-4430 could arguably
bar Plaintiff’s arguments with respect to case numbers 12-CV-4159
and 12-CV-4466, the Court will nonetheless address the merits of
Section 1915(g) of Title 28 of the United States Code
bars prisoners from proceeding in forma pauperis after three or
more previous claims have been dismissed as frivolous, malicious
or for failure to state a claim upon which relief may be granted.
Here, the Court found that Plaintiff had six--not three--prior
Miller v. County of Nassau, 467 F. Supp. 2d
308 (E.D.N.Y. 2006) (dismissed for failure to
state a claim upon which relief may be
granted); Miller v. Carpinello, 06-CV-12940
(LAP), 2007 WL 4207282 (S.D.N.Y. Nov. 20,
2007) (dismissed for failure to state a claim
upon which relief may be granted); Crosby v.
Walsh, 03-CV-4897(ARR) (E.D.N.Y. Feb. 11,
2005) (dismissed for failure to state a claim
upon which relief may be granted); Miller v.
(dismissed for failure to state a claim upon
which relief may be granted); Miller v.
Menifee, 01-CV-8414 (MBM) (dismissed as
frivolous); Miller v. U.S.A., 00-CV-2082 (TPG)
(S.D.N.Y.) (dismissed for failure to state a
claim upon which relief may be granted).
(Order, Case Number 12-CV-4159, Docket Entry 18, at 4; Order, Case
Number 12-CV-4466, Docket Entry 19, at 6.)
Plaintiff concedes that two of the above actions are
disqualifying--Miller v. County of Nassau, 467 F. Supp. 2d 308
(E.D.N.Y. 2006), and Miller v. County of Nassau, No. 00-CV-6124
(E.D.N.Y. Nov. 29, 2000)--and argues that the Court erred in
finding that the other actions constitute “strikes” under 28 U.S.C.
Specifically, with respect to Miller v. U.S.A., No.
00-CV-2082 (S.D.N.Y. Mar. 17, 2000), Plaintiff argues that it was
not filed while he was incarcerated, and, therefore, the “three
strikes” rule did not apply.
The Court disagrees.
Although Plaintiff is correct that Section 1915(g) only
indicates that the only address provided by Plaintiff to the court
in that case was a federal correctional facility--the Federal
Correctional Institution in Otisville, P.O. Box 1000, Otisville,
New York 10963--and the Second Circuit has held that district
courts may rely upon docket reports in determining whether a
dismissal was a “strike” for the purpose of Section 1915(g), see
Harris v. City of N.Y., 607 F.3d 18, 23-24 (2d Cir. 2010).
Accordingly, the dismissal of Miller v. U.S.A. does constitute a
“strike,” and--given that Plaintiff has conceded two strikes--the
Court need not address Plaintiff’s arguments with respect to the
other allegedly disqualifying actions.
disqualifying actions, the Court holds that it did not err in
denying Plaintiff’s applications for in forma pauperis status, and
his motion is therefore DENIED.
For the foregoing reasons, Plaintiff’s motion to vacate
the judgments in case numbers 12-CV-4159, 12-CV-4378, 12-CV-4430,
12-CV-4466 is DENIED.
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Plaintiff.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
October 3, 2013
Central Islip, NY
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