Norton v. City of Whiteville, et al

Filing 50

ORDER denying 45 Motion to Set Aside Final Order or Judgment - Signed by District Judge Louise Wood Flanagan on 9/29/2017.(Certified copy served via U.S. Mail upon Calvin Tyrone Norton at PO Box 1145, Whiteville, NC 28472) (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-00300-FL
CALVIN TYRONE NORTON,
Plaintiff,
v.
CITY OF WHITEVILLE, a
Municipality; WHITEVILLE POLICE
DEPARTMENT, a department under
the Municipality of the City of
Whiteville; TRACEY CARTER,
Police Officer of Whiteville Police
Department sued in her official and
individual capacity; STEPHEN aka
STEVEN STRICKLAND, Police
Officer of Whiteville Police Department
sued in his official and individual
capacity; JEFFERY ROSIER, Chief of
Police at Whiteville Police Department
sued in his official and individual
capacity; AUNDRE’ JACKSON,
Lieutenant at Whiteville Police
Department sued in his official and
individual capacity; and BOBBY
DEAN KEMP, JR., sued in his
individual capacity,
Defendants.

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ORDER

This matter is before the court on plaintiff’s motion to set aside final order of judgment
pursuant to Fed R. Civ. P. 60(b), which the court construes to include a motion to extend the time
to file a notice of appeal and motion to reopen the appeal. (DE 45). The issues raised have been
fully briefed and are ripe for adjudication. For the following reasons, this court denies plaintiff’s
motion.

BACKGROUND
On August 17, 2016, plaintiff filed this action, pro se, against defendants, alleging that
defendants officer Stephen Strickland, officer Tracey Carter, and Bobby Dean Kemp Jr. violated
plaintiff’s rights and trespassed on his land when officer Strickland pulled over Bobby Dean Kemp
Jr. in a traffic stop and arrested him, leaving behind Kemp’s vehicle on plaintiff’s property for 5
hours. (DE 1).
The court issued an order on March 7, 2017 granting certain defendants’ motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6). (DE 37). Final judgment was entered on March 7, 2017,
dismissing the case. (DE 38). On April 7, 2017, plaintiff filed a notice of appeal. (DE 40). On June
26, 2017, the United States Court of Appeals for the Fourth Circuit issued an unpublished opinion
citing Fed. R. App. P. 4(a)(l) and dismissing plaintiff’s appeal. (DE 43); see Fed. R. App. P. 4(a)(l)
(“In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal
required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment
or order appealed from”). On July 5, 2017, plaintiff filed the current motion in what appears to be
an attempt, at least in part, to correct the untimely filing of his notice of appeal. This matter was
reassigned to the undersigned district judge on July 28, 2017.
DISCUSSION
The court construes plaintiff’s motion to include a motion 1) to extend the time to file an
appeal; 2) to reopen the time to file an appeal; or 3) to set aside final order of judgment.
The court first turns to plaintiff’s motion to extend the time to file an appeal. Fed. R. App.
P. 4(a)(5) allows the district court to extend the time to file a notice of appeal if: “(i) a party so
moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless

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of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a)
expires, that party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(l) allows 30 days
following the entry of an order to file a notice of appeal.
Plaintiff seeks to extend the time to file a notice of appeal approximately 120 days after the
court issued its order and final judgment dismissing plaintiff’s case. Pursuant to Fed. R. App. P.
4(a)(5)(i), plaintiff’s time to file a motion to extend the time to file a notice of appeal expired 60
days prior to the filing of this motion. Therefore, the motion is not timely and is DENIED on that
basis.
Next, plaintiff has filed a motion to reopen the time to file an appeal. Fed. R. App. P. 4(a)(6)
allows the district court to reopen the time to file an appeal. The time to file an appeal may only be
reopened if: “(A) the court finds that the moving party did not receive notice under Fed. R. Civ. P.
77(d) of the entry of the judgment or order sought to appealed within 21 days after entry; (B) the
motion is filed within 180 days after the judgment or order is entered or within 14 days after the
moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever
is earlier; and (C) the court finds that no party would be prejudiced.” Id.
Plaintiff does not deny receipt of the order and final judgment dismissing this case with
prejudice as required by Fed. R. App. P. 4(a)(6). Plaintiff asserts instead that because of his
inexperience practicing before federal courts, his untimely filing was due to “professional
incompetence.” (DE 45 at 4-5). Because plaintiff received proper and timely notice of the order and
judgment of the court, plaintiff’s motion is DENIED.

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Finally, plaintiff has filed a motion to set aside final order of judgment. Fed. R. Civ. P. 60(b)
allows the court to 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 (whether previously called intrinsic
or extrinsic), 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.
An asserted change in decisional law subsequent to a final judgment provides no basis for relief
under Rule 60(b). Dowell v. State Farm Fire & Casualty Auto. Inc. Co., 993 F.2d 46, 48 (4th Cir.
1993).
Plaintiff contends that the ruling of the North Carolina Court of Appeals in State v. Huddy,
799 S.E.2d 650 (N.C. App. 2017) undermines the order of the court dismissing plaintiff’s claims.1
This is an insufficient basis upon which to grant a motion to set aside final order of judgment.
Therefore, plaintiff’s motion is DENIED.
CONCLUSION
For the foregoing reasons, plaintiff’s motion to set aside final order of judgment, motion to
extend the time to file a notice of appeal, or motion to reopen the appeal (DE 45) is DENIED.
SO ORDERED, this the 29th day of September, 2017.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

1

Plaintiff does not explain sufficiently the applicability of Huddy to the facts and issues presented in the
instant case. In Huddy, the Court of Appeals of North Carolina reversed the trial court’s denial of Huddy’s motion
to suppress evidence obtained after a law enforcement officer searched the curtilage of Huddy’s home without a
warrant in violation of the Fourth Amendment. State v. Huddy, 799 S.E.2d 650, 652 (N.C. Ct. App. 2017).

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