Witham v. DEC New York State et al

Filing 21

ORDER denying 20 Motion to Vacate. Signed by US District Judge Terrence W. Boyle on 8/17/2018. Copy sent to Judson Witham via US Mail to 15215 Aiken, Wake Forest, NC 27587. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-171-BO
JUDSON WITHAM,
Plaintiff,
v.
NEW YORK STATE, et al.,
Defendants.

)
)
)
)
)
)
)

ORDER

This cause comes before the Court on plaintiffs prose motion to vacate [DE 20] this
Court's previous order dismissing his case. [DE 6].
Plaintiff, proceeding prose, originally filed his complaint on April 10, 2017. [DE 1]. This
Court dismissed his case on May 31, 2017, finding that he had failed to satisfy the minimum
notice standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and that the Court lacked
personal jurisdiction over the defendants. [DE 6]. Plaintiffs appeal was dismissed by the Fourth
Circuit [DE 16] and the Supreme Court denied his petition for writ of certiorari [DE 19]. Plaintiff
has now moved to vacate the dismissal pursuant to Federal Rule of Civil Procedure 60(b).
- Federal Rule of Civil Procedure 60(b) provides for several grounds for relief from a final
judgment, order, or proceeding, including, (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); and (3) fraud, misrepresentation, or
misconduct by an opposing party. Fed. R. Civ. P. 60(b)(l)-(3).

Plaintiff does not establish that relief pursuant to Rule 60(b) is merited here. His motion
is not pursuant to any of the above grounds. 1 The Court construes prose pleadings liberally,

Erickson v. Pardus, 551 U.S. 89, 94 (2007), but the contents of plaintiffs motion are those
claims already considered and rejected by this Court when it entered its final judgment. [DE 6].
Therefore, nothing in the motion supports setting that judgment aside.
For the foregoing reasons, plaintiffs motion to vacate this Court's order [DE 20] is
DENIED.

SO ORDERED, this

_a

day of August, 2018.

RRENCE W. BOYLE
UNITED STATES DISTRICT UDGE

1
Plaintiff's motion does contain the word 'fraudulent,' but is still a rehashing of his original arguments. And, as his
case was dismissed prior any defendant being served, alleging an opposing party committed fraud, misrepresentation
or misconduct is not possible.

2