Smith v. Commonwealth of Virginia

Filing 10

ORDER: Plaintiff's motion for reconsideration (ECF 9) is denied. This action is closed. The Clerk of Court will only accept for filing documents that are directed to the United States Court of Appeals for the Second Circuit.The Court certifi es under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Loretta A. Preska on 10/3/22) (rdz) Transmission to Office of the Clerk of Court for processing.

Case 1:13-cv-08111-LAP Document 10 Filed 10/03/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WESLEY EDWARD SMITH,
Plaintiff,
-againstCOMMONWEALTH OF VIRGINIA,

13-CV-8111 (LAP)
ORDER

Defendant.
LORETTA A. PRESKA, United States District Judge:
Plaintiff filed this action pro se. On January 7, 2014, the Court dismissed the complaint as
frivolous, and directed Plaintiff to show cause why he should not be barred, under 28 U.S.C.
§ 1651, from filing any actions in forma pauperis (IFP) without prior leave of court. (ECF 6.)
Plaintiff did not respond to the order to show cause, and on February 27, 2014, the bar order was
issued. 1 (ECF 7.) On September 28, 2022, Plaintiff filed a document “for leave of court
application with application to file with relevant initial federal questions for administrative
agencies representing government for: the United States Congress, United States House of
Representatives, the House of Commons, the Senate House, the Equal Employment Opportunity
Commission, Senator Tim Kane, Speaker for the Congresswoman Nancy Pelosi, Senator Mitch
McConnell, State General Assembly.” (ECF 9.)
The Court liberally construes this submission as seeking reconsideration, under Fed. R.
Civ. P. 60(b), of the February 27, 2014 bar order. See Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006); see also Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (The

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Since then, Plaintiff has filed two IFP cases, which were dismissed under the bar order.
See Smith v. State of South Carolina, ECF 1:21-CV-0573, 6 (CM) (S.D.N.Y. Feb. 22, 2021); ECF
1:20-CV-7521, 3 (CM) (S.D.N.Y. Sept. 15, 2020).

Case 1:13-cv-08111-LAP Document 10 Filed 10/03/22 Page 2 of 4

solicitude afforded to pro se litigants takes a variety of forms, including liberal construction of
papers, “relaxation of the limitations on the amendment of pleadings,” leniency in the
enforcement of other procedural rules, and “deliberate, continuing efforts to ensure that a pro se
litigant understands what is required of him”) (citations omitted). After reviewing Plaintiff’s
submission, the Court denies the motion.
DISCUSSION
Under Fed. R. Civ. P. 60(b), a party may seek relief from a district court’s order or
judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing
party; (4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any other reason justifying
relief.
Fed. R. Civ. P. 60(b). A motion based on reasons (1), (2), or (3) must be filed “no more than one
year after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P.
60(c)(1).
In the “Background” section of Plaintiff’s submission, he writes: 2
COV and I, Wesley Edward Smith III had history since 1964. Since being sent
away in 1972, COV has adopted findings of violation of an alleged violation of its
laws, but chooses not to inform me nor [provide the substantive] proof required
from the above listed agencies as required by the law. Disenfranchising me from
my statutory and Constitutional rights guaranteed under the CFR or as the United
States Constitution affords all its citizens and residents. I Wesley Edward Smith
III am dissatisfied and aggrieved the adjudication process, as issues are inferred,
by the placement of Local, State and nor Federal officials intervening only to
assert his/her personal declarations, while asserting foreign claims, to precluded
or avoid trials and disavowing the equal and fair judgment rights of others under
2

The Court quotes from the submission verbatim, and all grammar, spelling, and
punctuation are as in the original.
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Case 1:13-cv-08111-LAP Document 10 Filed 10/03/22 Page 3 of 4

the same set of laws as applied is an alleged foreign abuse violation in the
process.
(Id. at 3.)
Even under a liberal interpretation of his motion, Plaintiff has failed to demonstrate that
any of the grounds listed in the first five clauses of Fed. R. Civ. P. 60(b) apply. Therefore, the
motion under any of these clauses is denied.
To the extent that Plaintiff seeks relief under Fed. R. Civ. P. 60(b)(6), the motion is also
denied. “[A] Rule 60(b)(6) motion must be based upon some reason other than those stated in
clauses (1)-(5).” United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009) (quoting Smith v.
Sec’y of HHS, 776 F.2d 1330, 1333 (6th Cir. 1985)). A party moving under Rule 60(b)(6) cannot
circumvent the one-year limitation applicable to claims under clauses (1)-(3) by invoking the
residual clause (6) of Rule 60(b). Id. A Rule 60(b)(6) motion must show both that the motion was
filed within a “reasonable time” and that “‘extraordinary circumstances’ [exist] to warrant relief.”
Old Republic Ins. Co. v. Pac. Fin. Servs. of America, Inc., 301 F.3d 54, 59 (2d Cir. 2002) (per
curiam) (citation omitted).
Plaintiff has failed to demonstrate that extraordinary circumstances exist to warrant relief
under Fed. R. Civ. P. 60(b)(6). See Ackermann v. United States, 340 U.S. 193, 199-202 (1950).
This submission is not a departure from Plaintiff’s pattern of frivolous litigation.
CONCLUSION
Plaintiff’s motion for reconsideration (ECF 9) is denied.
This action is closed. The Clerk of Court will only accept for filing documents that are
directed to the United States Court of Appeals for the Second Circuit.

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The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

October 3, 2022
New York, New York
LORETTA A. PRESKA
United States District Judge

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