Witherspoon v. United States of America

Filing 10

ORDER: Accordingly, Plaintiff's motion for reconsideration (ECF 5-8) is denied. The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff's case in this Court under Docket No. 17-CV- 10108 is closed. The Court will only accept for filing documents that are directed to the Second Circuit Court of Appeals. If Plaintiff files other documents that are frivolous or meritless, the Court will direct Plaintiff to show cause why Plaint iff should not be barred from filing further documents in this action. 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. (Signed by Judge Colleen McMahon on 7/16/21) (rdz) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DESMOND M. WITHERSPOON,
Plaintiff,
-againstUNITED STATES OF AMERICA,

17-CV-10108 (CM)
ORDER

Defendant.
COLLEEN McMAHON, United States District Judge:
Plaintiff filed this action pro se. On January 2, 2019, the Court dismissed the complaint
on the ground that Plaintiff is barred from filing any new action in forma pauperis (IFP) without
first obtaining from the Court leave to file. See Witherspoon v. Rivera, ECF 1:15-CV-4328, 7
(S.D.N.Y. June 30, 2015). On September 1, 2020, Plaintiff filed a “notice of motion” in
opposition to the January 2, 2019 dismissal order. (ECF 5.) Plaintiff filed additional notices of
motion seeking reconsideration of the Court’s judgment on: January 5, 2021 (ECF 6), January 8,
2021 (ECF 7), and February 9, 2021 (ECF 8, 9).
The Court liberally construes these submissions as a motion under Fed. R. Civ. P. 60(b)
for relief from a judgment or 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 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 the arguments in
Plaintiff’s submissions, 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).
The Court has reviewed Plaintiff’s submissions, and 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).

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CONCLUSION
Accordingly, Plaintiff’s motion for reconsideration (ECF 5-8) is denied.
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket.
Plaintiff’s case in this Court under Docket No. 17-CV-10108 is closed. The Court will
only accept for filing documents that are directed to the Second Circuit Court of Appeals. If
Plaintiff files other documents that are frivolous or meritless, the Court will direct Plaintiff to
show cause why Plaintiff should not be barred from filing further documents in this action.
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:

July 16, 2021
New York, New York
COLLEEN McMAHON
United States District Judge

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