McCoy v. Shepherd et al

Filing 108

OPINION AND ORDER. Plaintiff's motions to reopen the case # 104 and # 106 are DENIED. Signed by Magistrate Judge Norah McCann King on 10/26/2009. (sr)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CHARLES McCOY, Plaintiff, vs. ANTHONY W. SHEPARD, et al., Defendants. OPINION AND ORDER Plaintiff, proceeding pro se, initiated this action under 42 U.S.C. §1983, alleging that he was subjected to excessive force during the course of his June 2004 arrest by three police officers of the City of Heath. On April 24, 2009, this Court denied plaintiff's motion for Civil Action 2:06-CV-262 Magistrate Judge King

summary judgment and granted defendants' motion for summary judgment. Opinion and Order, Doc. No. 102; Judgment, Doc. No. 103. This matter is

now before the Court on plaintiff's motions to reopen the case, Doc. Nos. 104, 106. In denying plaintiff's motion for summary judgment, the Court noted that plaintiff's motion was "not supported by any affidavit, declaration or other evidentiary materials." Doc. No. 102. Opinion and Order, p.3,

In his motions to reopen, plaintiff asserts that he

"didn't know I had to re-supply the court with my evidence and summary judgment. I submitted concreted [sic] tangible proof of my allegations. Motion to Reopen Case , p.1, Doc. No. 104.

That was in April of 2006."

Although it is not entirely clear to what "tangible proof" plaintiff refers, the Court has reviewed plaintiff's filings from April 2006. The Complaint, Doc. No. 4, is supported by several documents,

including a history of criminal charges filed against plaintiff and relating to the incident at issue in this case. Although, as plaintiff

notes, those charges do not include a charge of resisting arrest, it appears that plaintiff was in fact convicted of assault for which he was sentenced to 180 days in jail, Doc. No. 4, p.9, and disorderly conduct for which he was sentenced to 30 days in jail, id., p.10. Doc. No. 5 is

a statement by Marcia McCoy who asserts that she took the attached photographs to support plaintiff's allegations of excessive force. Considering plaintiff's motions liberally, see Haines v.

Kerner, 404 U.S. 519, 520-21 (1972), the Court receives plaintiff's motions as motions for relief from judgment under F.R. Civ. P. Rule 60(b),1 which authorizes relief from judgment for "mistake, inadvertence, surprise or excusable neglect." Having considered F.R. Civ. P. 60(b)(1). evidentiary materials submitted by

the

plaintiff in connection with this case, the Court is not persuaded that his motion for summary judgment was improperly denied, that the

defendants' motion for summary judgment was improperly granted or that the judgment in favor of defendants was entered in error. Accordingly, plaintiff's motions to reopen the case, Doc. Nos. 104, 106, are DENIED.

October 26, 2009

s/Norah McCann King Norah McCann King United States Magistrate Judge

Rule 60(a) authorizes relief from judgment based on a clerical error. not appear that plaintiff's motions are based on a clerical error.

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It does

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