Banks v. Zickefoose et al

Filing 14

ORDER denying pltf's Rule 60(b)(4) motion 13 . (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/6/18. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK BANKS,
Plaintiff
v.
ZICKEFOOSE, et al.,
Defendants

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CIVIL NO. 1:13-CV-3042
(Chief Judge Conner)

ORDER
AND NOW, this 6th day of June, 2018, upon consideration of Banks’ motion
(Doc. 13) for relief from judgment pursuant to Rule 60(b)(4), wherein he claims that
the court’s judgment1 is void based on newly discovered evidence2 that “Voice to
Skull” technology is recognized by the National Security Agency (Doc. 13, ¶ 3), and

The court dismissed Banks’ complaint pursuant to 28 U.S.C. § 1915(g),
finding that he was prohibited from proceeding in forma pauperis because he had at
least three prior civil actions or appeals dismissed as frivolous, malicious, or for
failing to state a claim for which relief may be granted, and that there was no
indication that he was under imminent danger of serious physical injury. (Doc. 5).
1

Typically, the relief Banks seeks is brought pursuant to Rule 60(b)(2) which
provides that a party may file a motion for relief from a final judgment based upon
newly discovered evidence by which due diligence could not have been discovered
in time to move for a new trial under Rule 59(b). FED. R. CIV. P. 60(b)(2). A motion
based on newly discovered evidence under Rule 60(b)(2) must be brought within
one year after the entry of the judgment. See FED. R. CIV. P. 60(c). The court
dismissed Banks’ complaint on January 15, 2014. (Doc. 5). Banks appealed to the
United States Court of Appeals for the Third Circuit. (Docs. 7, 10). On March 12,
2014, the Third Circuit dismissed the appeal for failure to timely prosecute because
Banks failed to file a motion demonstrating imminent danger. (Doc. 12). Banks
filed the instant motion on February 15, 2018. (Doc. 13). Thus, if Banks opted to
proceed under Rule 60(b)(2), the motion would have been untimely.
2

the court noting that a judgment is only considered void and subject to relief under
Rule 60(b)(4) if: (1) the court which entered the judgment did not have personal or
subject matter jurisdiction; (2) the court entered a decree which was not within the
powers granted to it by law; or (3) the judgment arose out of a violation of due
process that deprived a party of notice or the opportunity to be heard, see United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (“Rule 60(b)(4) applies
only in the rare instance where a judgment is premised either on a certain type of
jurisdictional error or on a violation of due process that deprives a party of notice or
the opportunity to be heard.”); Marshall v. Board of Educ., Bergenfield, N.J., 575
F.2d 417, 422 (3d Cir. 1978) (“A judgment may indeed be void, and therefore subject
to relief under 60(b)(4), if the court that rendered it lacked jurisdiction of the
subject matter or the parties or entered a decree which is not within the powers
granted to it by the law.” (internal quotation marks omitted)), and the court finding
that it had jurisdiction over this matter and entered an order within its powers, and
that there was no deprivation of due process as Banks was capable of appealing the
court’s order to the Court of Appeals, and that Banks has thus failed to show that
the court’s judgment was void for any of the reasons enumerated above, it is hereby
ORDERED that the Rule 60(b)(4) motion (Doc. 13) is DENIED.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania