DENNINGS V. BRATHWAITH

Filing 16

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/22/2017, that Plaintiff's Refund Motion (Docket Entry 14 ) be denied. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRYANT DENNINGS,
Plaintiff,
v.
STEPHENIE R. BRATHWAITH,
Defendant.

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1:16cv926

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on the filing dated May 15,
2017, from Bryant Dennings (the “Plaintiff”) (Docket Entry 14) (the
“Refund Motion”). In the Refund Motion, Plaintiff seeks removal of
the filing fee associated with this action from “[his] account
because [he] never file [sic] no such case.”

(Id. at 1.)1

For the

reasons that follow, the Court should deny the Refund Motion.
BACKGROUND
On July 1, 2017, the United States District Court for the
Eastern District of North Carolina (the “Eastern District”) Clerk’s
Office received (see Docket Entry 1-1 at 1) and filed (see Docket
Entry 1 at 1) a complaint pursuant to 42 U.S.C. § 1983 brought by
“Bryant Dennings,” “Inmate Number 0695992,” against “Stephenie R.
Brathwaith” (id. (the “Complaint”) at 1-2). In connection with the

1 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination. For legibility purposes, this Opinion uses
standardized capitalization in all quotations from Plaintiff’s
materials.

Complaint, “Bryant Dennings” submitted an “Application to Proceed
in District Court without Prepaying Fees or Costs” (Docket Entry 2)
(the “IFP Application”) and multiple “North Carolina Department of
Public Safety Trust Fund Account Statement[s]” for the “Dennings,
Bryant T.” account, which covered much of the period from March 14,
2016, to June 20, 2016 (Docket Entry 3).

The following week,

“Bryant Dennings” submitted an “Affidavit in Support of Request to
Proceed In Forma Pauperis” (Docket Entry 7) (the “IFP Affidavit”),
as well as a “North Carolina Department of Public Safety Trust Fund
Account Statement” for the “Dennings, Bryant T.” account during the
period of June 27, 2016, through July 4, 2016 (Docket Entry 6).
The Affidavit bears a notarized signature of “Bryant Dennings”
dated June 8, 2016.

(See Docket Entry 7 at 1-2.)

Without ruling on the IFP Application, the Eastern District
transferred the action to this Court on July 8, 2016.

(See Docket

Entry 8 at 1-2; see also Docket Entries dated July 1, 2016, to July
8, 2016.)

Thereafter, on July 28, 2016, this Court (per the

undersigned

United

Application.

States

Magistrate

(See Docket Entry 10.)

Judge)

granted

the

IFP

In so doing, the Court

ordered Plaintiff to submit “an initial payment of $5.93” within 60
days and further ordered “Plaintiff’s trust officer . . . to pay to
the Clerk of this Court 20% of all deposits to [Plaintiff’s]
account

starting

with

the

month

of

September

of

2016,

and

thereafter each time that the amount in the account exceeds $10.00

2

until the [total] filing fee has been paid.”

(Id. at 2-3.)

The

Court also warned that “FAILURE TO COMPLY WITH THIS ORDER IN A
TIMELY MANNER WILL RESULT IN DISMISSAL OF THIS ACTION WITHOUT
FURTHER NOTICE TO PLAINTIFF.”

(Id. at 4 (emphasis in original).)2

Plaintiff failed to make the required initial payment.

(See

Docket Entries dated July 28, 2016, to Oct. 7, 2016.) Accordingly,
on October 7, 2016, the undersigned recommended dismissal of this
action pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure

(the

“Recommendation”)

“Rules”).
at

3.)

(See
The

Docket

Clerk

mailed

Entry

11

Notice

of

(the
the

Recommendation to Plaintiff (see Docket Entry 12), but Plaintiff
failed to timely respond to the Recommendation pursuant to Rule
72(b)(2) (see Docket Entries dated Oct. 7, 2016, to Nov. 4, 2016).
As such, on November 4, 2016, the Court (per United States District
Judge Loretta C. Biggs) adopted the Recommendation and dismissed
this action pursuant to Rule 41(b).

(See Docket Entry 13 at 1.)

Plaintiff did not appeal or otherwise challenge that dismissal.
(See Docket Entries dated Nov. 4, 2016, to present.)

Indeed, no

further activity occurred in this action until May 3, 2017, when
the Court received the first payment (of eleven cents) towards the

2 The Court additionally stayed proceedings in this action
“until Plaintiff ha[d] either (1) submitted to the Court the
initial payment noted above, or (2) in the alternative ha[d]
submitted a motion for relief from the stay, and a statement made
under penalty of perjury that he ha[d] not had access to any funds
for initial payment noted above for the 60-day period.” (Docket
Entry 10 at 3.)
3

unpaid filing fee (see Docket Entry dated May 3, 2017).

(See

generally Docket Entries dated Nov. 4, 2016, to May 3, 2017.)
Shortly thereafter, Plaintiff filed the Refund Motion. (See Docket
Entry 14 at 1.)
DISCUSSION
The Refund Motion seeks “a court order for [getting] this
filing fee [Plaintiff] ha[s] on [his] account taken off.”

(Id.)

In support of the Refund Motion, Plaintiff maintains that he does
not know “Stephenie R. Brathwaith” and “ha[s] no clue of this case
or nothing.”

(Id.)

Plaintiff further contends that he “ha[s] no

knowledge of such civil docket for case 1:16-cv-00926-LCB-LPA” and
“never file[d] no such case.”

(Id.)

Instead, Plaintiff asserts,

“someone or other prisoner forged [his] name and signature to file
this 42:1983.”

(Id.)

In light of these assertions and the liberal construction
afforded pro se filings, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), the undersigned analyzes the Refund Motion as a Rule 60(b)
request for relief.

“Rule 60(b) allows a party to seek relief from

a final judgment, and request reopening of his case, under a
limited set of circumstances including fraud, mistake, and newly
discovered evidence.”
(2005).

Gonzalez v. Crosby, 545 U.S. 524, 528

As relevant here, Rule 60(b) authorizes the Court to

“relieve a party . . . from a final judgment, order, or proceeding”

4

for “fraud,” Fed. R. Civ. P. 60(b)(3), or for “any other reason
that justifies relief,” Fed. R. Civ. P. 60(b)(6).
To prevail on a Rule 60(b) motion, “a party must [first]
demonstrate (1) timeliness, (2) a meritorious defense, (3) a lack
of unfair prejudice to the opposing party, and (4) exceptional
circumstances.

After a party has crossed this initial threshold,

[he] then must satisfy one of the six specific sections of Rule
60(b).”

Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d

295, 299 (4th Cir. 2017) (internal quotation marks and citation
omitted). To obtain relief pursuant to Rule 60(b)(3), a party must
“prove

the

misconduct

complained

of

by

clear

and

convincing

evidence and demonstrate that such misconduct prevented him from
fully and fairly presenting his claim or defense.”

Square Constr.

Co. v. Washington Metro. Area Transit Auth., 657 F.2d 68, 71 (4th
Cir. 1981).

Meanwhile, “only truly extraordinary circumstances

will permit a party successfully to invoke the ‘any other reason’
clause of [Rule] 60(b)[(6)].”
(4th

Cir.

2011)

omitted).

(en

banc)

Aikens v. Ingram, 652 F.3d 496, 501
(certain

internal

quotation

marks

Thus, circumstances that “fall within the list of

enumerated reasons given in Rule 60(b)(1)-(5)” or that “could have
been addressed on appeal from the judgment” do not qualify for Rule
60(b)(6) relief.

Id. at 500-01.

Here, Plaintiff seeks relief from his obligation to pay the
filing fee.

(See Docket Entry 14 at 1.)

5

In support of his

request, Plaintiff maintains that he did not file this case and
that “someone or other prisoner forged [his] name and signature to
file

this

42:1983.”

(Id.)

However,

even

assuming

that

it

satisfies the Rule 60(b) threshold requirements, see Wells Fargo,
859 F.3d at 299, the Refund Motion fails to justify Rule 60(b)
relief.
To begin with, because Plaintiff did not make his allegations
under penalty of perjury (see Docket Entry 14 at 1), the Refund
Motion lacks evidentiary value.

See Wilbanks v. Simmons, No.

1:13cv167,

*4

2014

WL

3894359,

at

(M.D.N.C.

Aug.

8,

2014)

(concluding that unsworn document failed to qualify as competent
evidence).

Conversely,

“Bryant

Dennings”

Affidavit under penalty of perjury.

executed

the

IFP

(See Docket Entry 7 at 1-2.)

More importantly, a notary witnessed the signature of “Bryant
Dennings” on the IFP Affidavit.

(See id. at 2.)

Furthermore,

immediately below such notarized signature appears the Albemarle
Correctional

Institution

Accountant’s

certification

that

the

“Petitioner/Defendant named above has the sum of $0.01 on account
in his/her credit at this Institution where he/she is housed.”
(Id.)

This amount matches the amount on the accompanying “North

Carolina Department of Public Safety Trust Fund Account Statement”
for the “Dennings, Bryant T.” account at Albemarle Correctional
Institution.
Carolina

(See Docket Entry 6 at 1.)

Department

of

Public

6

Safety

Indeed, multiple “North
Trust

Fund

Account

Statement[s]” for the “Dennings, Bryant T.” account appear in the
record, each bearing the same identification number (0695992) as
the Complaint and as the envelope in which Plaintiff submitted the
Refund Motion.

(Compare Docket Entry 3 at 1-7, and Docket Entry 6

at 1, and Docket Entry 1 at 1-2, 10, with Docket Entry 14-1 at 1
(identifying sender as “Bryant Dennings 0695992”).)
Additionally, the Refund Motion reflects Plaintiff’s awareness
of both the nature of the Complaint, filed in July 20163 (compare
Docket Entry 1 at 2, with Docket Entry 14 at 1), and the identity
of the Deputy Clerk who issued Notice of the Recommendation to
Plaintiff in October 2016 (compare Docket Entry 12 at 1, with
Docket Entry 14 at 1).

The Refund Motion does not explain,

however, why Plaintiff waited until May 2017 to raise this alleged
fraud rather than alerting the Court earlier, as, for instance, in
response to the October 2016 Recommendation and Notice or in an
appeal from the November 2016 Judgment dismissing this action.
(See generally Docket Entry 14.)

Under these circumstances, the

unsworn Refund Motion fails to prove by clear and convincing
evidence that “someone or other prisoner forged [Plaintiff’s] name
and signature to file this 42:1983” (id. at 1), precluding Rule
60(b)(3) relief, and similarly fails to establishes the “truly
extraordinary circumstances” required for Rule 60(b)(6) relief.

3 The Complaint bears the date of June 27, 2016.
Entry 1 at 10.)
7

(See Docket

CONCLUSION
Plaintiff fails to justify Rule 60(b) relief.
IT IS THEREFORE RECOMMENDED that Plaintiff’s Refund Motion
(Docket Entry 14) be denied.
This 22nd day of August, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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