Hankins v. The State of North Carolina et al

Filing 13

ORDER denying 9 Motion to Reinstate Complaint, MOTION for Temporary Restraining Order; denying 11 Motion Writ of Mandamus / Emergency Motion for Mandatory Injunction. Signed by District Judge James C. Dever III on 5/10/2019. Sent to Timothy Hankins at 4729 G. St Garner, NC 27529 via US Mail. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUI'HERN DMSION
No. 7:18-CV-61-D

TIMOTHY HANKINS,

)
)
Plaintiff,
)
)
)
v.
)
STATE OF NORTH CAROLINA,
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et al.,
)
)
Defendants. )

ORDER

On April 4, 2018, Timothy Hankins ("Hankins" or ''plaintiff') applied to proceed in forma
pauperis under 28 U.S.C. § 1915 [D.E. 1]. On April 15, 2018, the court referred the motion to
Magistrate Judge Swank for frivolity review [D.E. 4]. On August 21, 2018, Magistrate Judge Swank
issued an order and Memorandum and Recommendation ("M&R") [D.E. 7], granted plaintiff's
application to proceed in forma pauperis, and recommended that the court dismiss plaintiff's complaint
for failure to state a claim upon which relief can be granted [D.E. 7]. On September 4, 2018, Hankins
filed a notice of voluntary dismissal [D.E. 8].
Hankins now moves to reopen the case [D.E. 9], and he has filed a proposed amended
complaint [D.E. 10]. The clerk has also filed and docketed as a motion what appears to be a copy of
a mandamus petition that Hankins has filed in the United States Court of Appeals for the Fourth
Circuit [D.E. 11]. Cf. Fed. R. App. P. 21(a)(l); In re Hankins, No. 19-1481 (4th Cir. 2019).
The court has considered Hankins's motion to reopen the case under the governing standard.
See Fed. R. Civ. P. 60(b); Aikens v. Ingram. 652 F.3d 496, 500--01 & n.3 (4th Cir. 2011) (en bane);
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 412 n.12 (4th Cir. 2010); Nat'l Credit Union

Admin. Bd. v. Gray, 1F.3d262, 264 (4th Cir. 1993); cf. Luxama v. McHugh, 675 F. App'x 272, 273
(4th Cir. 2017) (per curiam) (unpublished). Hankins fails to establish a meritorious claim or defense.
Thus, Hankins fails to meet Rule 60(b)'s threshold requirements. If Hankins seeks to amend his
complaint, the court evaluates the motion ''for prejudice, bad faith, or futility." Laber v. Harvey, 438
F.3d404, 427 (4th Cir. 2006) (en bane); seeKacylev. PennNat'l Gaming. Inc., 637F.3d462, 471 (4th
Cir. 2011). Hankins's proposed complaint would be futile. The proposed amended complaint, like
Hankins's original complaint, fails to state a plausible claim. See Kacyle, 637 F.3d at 470-71. Thus,
Hankins's motion for reconsideration lacks merit.
If Hankins seeks a writ of mandamus [D.E. 11 ], granting a writ of In.an.dam.us is a drastic

remedy to be used only in extraordinary situations. See Kerr v. U.S. Dist. Court for the N. Dist. of
Cal.,426U.S. 394,402(1976); Cumberlandcty.Hosp. Sys.. Inc. v.Burwell, 816F.3d48, 52(4thCir.
2016); United States v. Moussaoui, 333 F.3d 509, 516 (4th Cir. 2003); Inre Beard, 811F.2d818, 826
(4th Cir. 1987). "The party seeking mandamus relief carries the heavy burden of showing that he has
no other adequate means to attain the relief he desires and that his right to

su~h

relief is clear and

indisputable." Inre Beard, 811 F.2d at 826 (quotations omitted); see Allied Chem. Com. v. Dai:tlon.
Inc., 449 U.S. 33, 35 (1980). Hankins has failed to make the requisite showing.
In sum, the court DENIES plaintiff's motions [D.E. 9, 11].
SO ORDERED. This ifl... day of May 2019.

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