Tolliver v. City of Syracuse et al

Filing 20

SUMMARY ORDER - That Tolliver's motion for relief from a judgment or order (Dkt. No. 14) is DENIED. That, consistent with the Order of the Second Circuit, Tolliver shall notify the Second Circuit within thirty (30) days of the date of this Summary Order that a decision on his motion for reconsideration has been entered. Signed by Senior Judge Gary L. Sharpe on 3/8/2017. (Copy served via regular)(jel, ) Modified on 3/8/2017 (jel, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ERIC TOLLIVER,
Plaintiff,

5:16-cv-99
(GLS/TWD)

v.
CITY OF SYRACUSE et al.,
Defendants.
________________________________
SUMMARY ORDER
Pending before the court is plaintiff pro se Eric Tolliver’s motion for
relief from a judgment or order pursuant to Rule 60(b)(1). (Dkt. No. 14.)
On initial review under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, this action
was dismissed with prejudice. (Dkt. No. 10.) After filing a notice of appeal,
(Dkt. No. 12), Tolliver moved for the relief addressed herein, (Dkt. No. 14).
The Second Circuit thereafter ordered this court to resolve the motion.
(Dkt. No. 19.) After careful consideration, the motion is denied.
Rule 60(b)(1) empowers the court with discretion to “relieve a party
. . . from final judgment . . . for . . . mistake, inadvertence, surprise, or
excusable neglect.” See Gesualdi v. Quadrozzi Equip. Leasing Corp., 629
F. App’x 111, 113 (2d Cir. 2015). Such a motion shall “be made within a

reasonable time,” Fed. R. Civ. P. 60(c)(1), but, as relevant here, the Local
Rules of Practice in this District require motions for reconsideration to be
filed “no later than FOURTEEN DAYS after the entry of the challenged
judgment, order, or decree, N.D.N.Y. L.R. 7.1(g). See Siemens
Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y.
2004) (recognizing that, despite Rule 60(b)’s generic “reasonable time”
filing requirement, a court’s local rules may specify a definitive period of
time within which the party must seek reconsideration of an order or
judgment).
The motion in question is dated September 26, 2016 and it seeks
reconsideration of a Memorandum-Decision, which was entered on August
30, 2016. (Dkt. Nos. 10, 11, 14.) Accordingly, the motion is untimely, as it
was filed fifteen days after entry of the challenged order and judgment.
See N.D.N.Y. L.R. 7.1(g). In any event, Tolliver’s motion fails on the merits
as explained below.
Tolliver claims that he is entitled to relief because the court’s
“decision was a clear error of law which need [sic] correction in order to
prevent manifest injustice.” (Dkt. No. 14 at 3.) As argued by Tolliver, the
court erred by dismissing his complaint with prejudice, and failed to
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perceive a due process claim. (Id. at 3-5.) The authority relied upon by
Tolliver to show that his complaint should have been dismissed without
prejudice, (id. at 3-4), misses the point. The court’s prior orders amply
explain the reasons for dismissal with prejudice. (Dkt. No. 8 at 8-10; Dkt.
No. 10 at 5-6.) Tolliver’s other argument, that Magistrate Judge Dancks
somehow failed to follow the dictates of 28 U.S.C. § 1915A(b) in
connection with his due process claim, (Dkt. No. 14 at 5), is also
misguided. As succinctly stated in Judge Dancks’ ReportRecommendation, which was adopted in full by this court, because Tolliver
was afforded a meaningful post-deprivation remedy, he failed to state a
due process claim. (Dkt. No. 8 at 10; Dkt. No. 10 at 6.) Tolliver has failed
to raise any basis to revisit the court’s prior rulings.
Accordingly, it is hereby
ORDERED that Tolliver’s motion for relief from a judgment or order
(Dkt. No. 14) is DENIED; and it is further
ORDERED that, consistent with the Order of the Second Circuit,
Tolliver shall notify the Second Circuit within thirty (30) days of the date of
this Summary Order that a decision on his motion for reconsideration has
been entered; and it is further
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ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
March 8, 2016
Albany, New York

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