Fair v. Lew
DECISION AND ORDER: ORDERED that Plaintiff's request to proceed with the appeal of this matter in forma pauperis (Dkt. Nos. 15 and 17 ) is DENIED as unnecessary because his in forma pauperis status has not been revoked. Plaintiff may procee d on appeal in forma pauperis without further authorization from this Court. ORDERED, that plaintiff's motion to reconsider/vacate (Dkt. No. 12 ) is DENIED. ORDERED, that Plaintiff's motion for copies of the Judges' Oaths of Office, Dkt. No. 13 is DENIED. Signed by Judge David N. Hurd on 7/10/17. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KEITH DARNELL FAIR,
JACOB LEW, United States
Secretary of Treasury,
KEITH DARNELL FAIR
Plaintiff, pro se
Central New York Psychiatric Center
PO Box 300
Marcy, NY 13403
DAVID N. HURD
United States District Judge
DECISION AND ORDER
In February 2017, pro se plaintiff Keith Darnell Fair ("Fair" or "plaintiff") commenced
this civil rights action. See Dkt. No. 1.
In a Decision and Order of this Court filed on May 16, 2017, Fair was granted leave to
proceed in forma pauperis. Dkt. No. 9 (the "May Order"). Following review of plaintiff's
complaint in accordance with 28 U.S.C. § 1915(e) and § 1915A, the Court determ ined that
the complaint failed to state a claim upon which relief could be granted and was therefore
subject to dismissal without leave to amend. Id. Judgment was duly entered by the
Clerk. Dkt. No. 10. Plaintiff has since appealed to the Second Circuit Court of Appeals. Dkt.
Presently pending are Fair's motions: (1) to proceed in forma pauperis on appeal
(Dkt. Nos. 15 and 17); (2) to reconsider/vacate the May Order and Judgment (Dkt. No. 12);
and (3) for a copy of the Judges' Oath of Office (Dkt. No. 13).
Motion for Leave to Proceed In Forma Pauperis on Appeal
Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides, in relevant part:
Prior Approval. A party who was permitted to proceed in forma
pauperis in the district-court action . . . may proceed on appeal
in forma pauperis without further authorization, unless:
(A) the district court – before or after the notice of appeal is
filed – certifies that the appeal is not taken in good faith or finds
that the party is not otherwise entitled to proceed in forma
pauperis and states in writing its reasons for the certification or
finding . . . .
Fed. R. App. P. 24(a)(3).
Fair's motion for leave to proceed in forma pauperis was previously granted, see
Dkt. No. 9, and the Court has not revoked that status. Accordingly, plaintiff may proceed with
his appeal to the Second Circuit in forma pauperis without further authorization from this
B. Motion to Reconsider/Vacate1
"The decision to grant or to deny a Rule 59(e) motion for reconsideration rests with the
sound discretion of the District Court." U.S. v. Eubanks, No. S7 92 CR 392, 1999 W L
1261256, at *5 (S.D.N.Y. Dec.27, 1999) (citation omitted).
"A court may justifiably reconsider its previous ruling if: (1) there is an intervening
change in the controlling law; (2) new evidence not previously available comes to light; or
(3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice."
Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (citing Doe v. New York City Dep't
of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)).
"The standard for granting a motion for reconsideration is strict[.]" Shrader v. CSX
Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration "should
not be granted where the moving party seeks solely to relitigate an issue already
Furthermore, a motion for reconsideration is not to be used for "presenting the case
under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at
the apple.' " Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).
Rule 60(b) provides:
Grounds for Relief from a Final Judgment, Order or
Proceeding. On a motion and just terms, the court may
relieve a party . . . from a final judgment, order, or proceeding
for the following reasons:
On June 5, 2017, plaintiff filed a motion entitled "Petition for Rehearing." Dkt. No. 12. It is unclear
whether the motion is intended to be a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) or a motion to
vacate pursuant to Rule 60. Although plaintiff field a notice of appeal, the district court retains jurisdiction to
consider plaintiff's motion. See De La Rosa v. Rocco, No. 07 Civ. 7577, 2011 WL 2421283, at *1 (S.D.N.Y. June
8, 2011) (citing Fed. F. App. P. 4(a)).
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence, that with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
fraud, misrepresentation, or misconduct;
the judgment is void;
the judgment has been satisfied, released, or
any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Fair does not specify the grounds under which he seeks to vacate. However,
construing his submission liberally, plaintiff requests relief under rule 60(b)(6) arguing
Rule 60(b)(6) is a "catch-all" provision that applies to "extraordinary circumstances" or
"extreme hardship." U.S. v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977). The decision whether to
afford relief rests with the "sound discretion of the district court." Garcia v. Myears, No. 13CV-0965, 2015 WL 1015425, at *2 (W.D.N.Y. March 9, 2015).
"Generally, courts require that the evidence in support of the motion to vacate a final
judgment be 'highly convincing,' that a party show good cause for the failure to act sooner,
and that no undue hardship be imposed on other parties." Kotlicky v. U.S. Fid. & Guar. Co.,
817 F.2d 6, 9 (2d Cir. 1987) (citation and internal citations om itted).
Fair has not cited to any caselaw which would mandate that the prior decision be
vacated and has not demonstrated an intervening change in controlling law, nor has he
articulated any clear legal error. While plaintiff disagrees with the May Order, plaintiff has not
made any showing that reconsideration of the May Order is warranted. See, e.g., Banco de
Seguros Del Estado v. Mut. Marine Offices, Inc., 230 F.Supp.2d 427, 431 (S.D.N.Y.2002)
(denying motion for reconsideration where movant "reargue[d] the points it made during the
initial briefing and . . . explain[ed] to the Court how its analysis is 'erroneous'"); U.S. v. Delvi,
2004 WL 235211 (S.D.N.Y. Feb. 6, 2004) (denying motion for reconsideration where movant
"point[ed] to no facts or law that the Court overlooked in reaching its conclusion, and instead
simply reiterate[d] the facts and arguments that the Court already considered and rejected").
Further, Fair has failed to sustain the burden of demonstrating extraordinary
circumstances to warrant relief from the May Order and Judgment. Accordingly, plaintiff's
motion (Dkt. No. 12) is denied.
C. Motion for Oath of Office
Fair seeks an order directing the Clerk of the Court to provide copies of the District
Judge and Magistrate Judge oaths of office. Dkt. No. 13 at 1. Plaintiff claims that he has
"unfinished Trust Business and Fiduciary violations with [ ] these persons." Id.
This motion is denied as frivolous. See U.S. v. Conces, 507 F.3d 1028, 1036 (6th Cir.
2007) (finding that the district court properly held that the plaintiff's demand for the "Oaths of
Office" in an attempt to challenge subject matter jurisdiction was frivolous).
Therefore, it is
1. Plaintiff's request to proceed with the appeal of this matter in forma
pauperis (Dkt. Nos. 15 and 17 ) is DENIED as unnecessary because his in forma pauperis
status has not been revoked. Plaintiff may proceed on appeal in forma pauperis without
further authorization from this Court;
2. Plaintiff's motion to reconsider/vacate (Dkt. No. 12) is DENIED;
3. Plaintiff's motion for copies of the Judges' Oaths of Office is DENIED; and
4. The Clerk of the Court shall serve a copy of this Order on plaintiff.
IT IS SO ORDERED.
Dated: July 10, 2017
Utica, New York.
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