Harris v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFFS MOTION TO ALTER OR AMEND THE JUDGMENT (DOC. 14 ) BE DENIED; AND (2) THIS CASE REMAIN TERMINATED ON THE COURTS DOCKET. Objections to R&R due by 8/24/2015. Signed by Magistrate Judge Michael J. Newman on 8/6/15. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DERRICK HARRIS,
Plaintiff,

Case No. 3:14-cv-333

vs.
COMMISSIONER OF
SOCIAL SECURITY,

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

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFF’S MOTION TO ALTER
OR AMEND THE JUDGMENT (DOC. 14) BE DENIED; AND (2) THIS CASE REMAIN
TERMINATED ON THE COURT’S DOCKET

This Social Security case is before the Court on pro se Plaintiff’s motion to re-open the
case (doc. 14), which the undersigned construes as a motion to alter or amend a judgment
pursuant to Fed. R. Civ. P. 59(e). See Moody v. Pepsi–Cola Metro. Bottling Co., 915 F.2d 201,
206 (6th Cir. 1990). On June 8, 2015, the Court affirmed the Administrative Law Judge’s
(“ALJ”) non-disability determination, and the Clerk entered judgment accordingly. Docs. 12,
13. Under Rule 59(e), a “motion to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.” Plaintiff’s motion was filed on July 21, 2015 -- i.e., 43
days after the entry of judgment -- and, therefore, is untimely. Accordingly, insofar as Plaintiff
purports to seek relief under Rule 59(e), the undersigned RECOMMENDS that such request be
DENIED.
When a Rule 59 motion is not filed within the mandatory deadline, it is appropriate for
the Court to consider the motion as a motion for relief from judgment pursuant to Rule 60. See
1

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

In re Saffady, 524 F.3d 799, 800 n.2 (6th Cir. 2008) (citing Feathers v. Chevron U.S.A., Inc., 141
F.3d 264, 268 (6th Cir. 1998)).

“Relief from a final judgment under Rule 60(b) is an

‘extraordinary remedy that is granted only in exceptional circumstances.’” McAlpin v. Lexington
76 Auto Truck Stop, Inc., 229 F.3d 491, 502-03 (6th Cir. 2000) (citation omitted). A motion for
such relief may only be granted for one of six enumerated 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 other 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.
Fed. R. Civ. P. 60(b).
Plaintiff’s motion does not articulate a reason that would warrant relief under Rule 60(b).
This Court affirmed the ALJ’s non-disability determination upon finding the ALJ properly
assessed Plaintiff’s credibility and allegations of disabling symptoms -- the only conceivable
error alleged in Plaintiff’s Statement of Errors. Docs. 11, 12. Plaintiff now states that he “found
one of [his] prescriptions,” (relevant to his mental health impairments) and generally asks for
reconsideration of the Court’s decision. Doc. 14. Plaintiff fails to explain how this allegedly
newly obtained evidence relates to the Court’s conclusions or otherwise present an arguable
basis upon which this Court could set aside its original judgment.
Accordingly, it is RECOMMENDED that Plaintiff’s motion (doc. 14) be DENIED, and
this case remain TERMINATED on the Court’s docket. The Clerk is ORDERED to serve this
Report and Recommendation to Plaintiff by regular mail at the address listed on the docket.
Date: August 6, 2015

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
2

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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is 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.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

3