Yeldon v. Fisher et al

Filing 84

ORDER terminating 81 Motion to Appoint Counsel ; denying 82 Motion for Reconsideration. Signed by Hon. H. Kenneth Schroeder, Jr on 5/26/2011. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIE JAMES YELDON, 97-B-1012,
Plaintiff,

07-CV-370(Sr)

v.
BRIAN Fischer, et al.,
Defendants.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of
this case to the undersigned to conduct all proceedings in this case, including the entry of final
judgment. Dkt. #34.

By Decision and Order entered March 31, 2011, the Court granted defendants’
motions for summary judgment and directed the Clerk of the Court to enter judgment in favor of
defendants. Dkt. #79. Judgment was entered on April 1, 2011. Dkt. #80.

On May 5, 2011, plaintiff moved for reconsideration on the ground that he had no
notice of the pending motion for summary judgment and no response to his request for counsel.
Dkt. #82. Plaintiff also filed a motion to appoint counsel (Dkt. #81), and a response to
defendants’ motion for summary judgment. Dkt. #83.

The Court has previously denied three motions to appoint counsel. Dkt. ##8, 53
& 75. In addition, defendants’ properly advised plaintiff of his obligation to oppose the motions
for summary judgment as required by Irby v, New York City Transportation Authority, 262 F.3d

412 (2d Cir. 2001). Dkt. ##63 & 69. Furthermore, plaintiff submitted an affirmation and
memorandum of law in response to the motions for summary judgment, which the Court
carefully considered. Dkt. #72.

Federal Rule of Civil Procedure Rule 60(b) provides as follows:
On motion and just terms, the court may relieve a party . . . from a
final judgment, order, or proceeding 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 . . . misrepresentation, or misconduct by 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 that
justifies relief.
Rule 60(b) is not to be used as a substitute for an appeal. Diamond v. Pataki, No. 03 CIV. 4642
(SHS), 2004 WL 1924755, at *8 (S.D.N.Y. Aug. 27, 2004).

Plaintiff’s current response to the motion for summary judgment does not satisfy
the requirements of Rule 60 or otherwise demonstrate cause for relief from the entry of
summary judgment in defendants’ favor. As a result, the motion for reconsideration is denied
and the motion for appointment of counsel is terminated.

SO ORDERED.

DATED:

Buffalo, New York
May 26, 2011
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge