Hill v. Rastatter et al

Filing 16

REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO FED. R. CIV. P.60(b)(4) (Doc 15 be denied; and (2) This case remain terminated on the court's docket. Objections to R&R due by 3/14/2013. Signed by Magistrate Judge Michael J Newman on 02/25/13. (pb1) Modified on 2/25/2013 (pb1) (Hill).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ALPHONZO H. HILL,

:

Case No. 3:12-cv-173

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Plaintiff,
vs.
:
DOUGLAS M. RASTATTER, et al.
Defendants.

:

REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFF’S MOTION
FOR RELIEF FROM JUDGMENT PURSUANT TO FED. R. CIV. P. 60(b)(4) (DOC. 15)
BE DENIED; AND (2) THIS CASE REMAIN TERMINATED ON THE COURT’S
DOCKET

This matter is before the Court upon pro se Plaintiff’s motion for relief from judgment
pursuant to Fed. R. Civ. P. 60(b)(4), wherein he claims the Court’s judgment should be deemed
“void.” Doc. 15. Relief from a “void” judgment under Rule 60(b)(4) is warranted in two
limited circumstances: (1) there was “jurisdictional error”; or (2) there was “a violation of due
process that deprives a party of notice or the opportunity to be heard.” United Student Aid
Funds, Inc. v. Espinosa, ___ U.S. ___, 130 S. Ct. 1367, 1377 (2010); see also Ne. Ohio Coalition
v. Husted, 696 F.3d 580, 601 (6th Cir. 2012). Plaintiff has failed to make either showing here.
See doc. 15. Further, the Court has liberally construed Plaintiff’s motion, and there is no
suggestion therein, or in the record, that he be entitled to relief because of mistake, newly
discovered evidence, fraud, or any other grounds for relief under Rule 60(b).

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

In his motion, Plaintiff makes reference to the Court’s Order staying the case while the
undersigned’s Report and Recommendation was pending before the District Judge. See doc. 8.
Recognizing this case was dismissed at the outset under 28 U.S.C. § 1915(e)(2)(B) and never
proceeded to the discovery stage, Plaintiff’s concerns regarding a discovery stay are, as a legal
matter, irrelevant to the Court’s decision to dismiss his claims. Moreover, there is no evidence
that any discovery abuses occurred.
Accordingly, for the above reasons -- and for the reasons stated more fully in the
undersigned’s October 17, 2012 Report and Recommendation that Plaintiff’s first post-judgment
motion be denied, see doc. 132 -- the Court RECOMMENDS that his current motion for relief
from judgment pursuant to Rule 60(b)(4) (doc. 15) be DENIED; and this case remain
TERMINATED on the Court’s docket.
February 25, 2013

s/ Michael J. Newman
United States Magistrate Judge

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Following the Court’s sua sponte dismissal of Plaintiff’s complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) for failure to state a claim upon which relief can be granted, see docs. 3, 9, Plaintiff filed
a pro se post-judgment motion. Doc. 12. The undersigned, liberally construing that motion as one to
alter or amend judgment under Rule 59(e), recommended that it be denied. Doc. 13. Plaintiff filed
objections to that Report and Recommendation, which are now pending before the Court. Doc. 14.

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs. A party may respond to another party=s
objections within FOURTEEN days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See United States v.
Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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