Winslow v. Johnson et al

Filing 103

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 10/21/13. Copy sent: Yes(tdai, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

KERRY LEE WINSLOW,
Plaintiff,
v.

Civil Action No. 3:08cvl84

GENE M. JOHNSON, et al.,
Defendants.
MEMORANDUM OPINION

On March 21, 2008, Kerry Lee Winslow, a Virginia prisoner proceeding pro se, filed an
action pursuant to 42 U.S.C. § 1983 making multiple claims against multiple defendants. By
Memorandum Opinion and Order entered on March 18, 2009, this Court dismissed all of
Winslow's claims except for Claim 4(B). Winslow v. Johnson, No. 3:08CV184, 2009 WL
743437, at *7 (E.D. Va. Mar. 18,2009).
The Court referred Claim 4(B) "to the [Magistrate Judge] M. Hannah Lauck for further
proceedings." Winslow v. Johnson, No. 3:08CV184, 2010 WL 2931013, at *1 (E.D. Va. July 22,

2010).

On April 28, 2010, Winslow advised the Court that he was no longer incarcerated.

Thereafter, Winslow stopped communicating with the Court. "On June 30, 2010, the Honorable
M. Hannah Lauck issued a Report and Recommendation recommending that Plaintiffs

remaining claim be dismissed without prejudice for Plaintiffs failure to respond to the Court's

order to submit documentary evidence in anticipation of an evidentiary hearing." Id. (citing Fed.
R. Civ. P. 41(b)). On July 22,2010, by Memorandum Opinion and Order, the Court accepted the
June 30, 2010 Report and Recommendation and dismissed the remaining claim and the action
without prejudice. Id.

On May 9, 2013, the Court received Winslow's motion pursuant to Federal Rule of Civil
Procedure 60(b)(1) & (6) ("Rule 60(b) Motion" (ECF No. 97)) challenging the Court's July 22,
2010 Memorandum Opinion and Order.

The Federal Rules of Civil Procedure require Rule 60(b)(1) movants to file their motions

"no more than a year after the entry of the judgment or order or the date of the proceeding." Fed.
R. Civ. P. 60(c)(1). Winslow challenges this Court's July 22, 2010 Memorandum Opinion and
Order. Thus, Rule 60(c)(1) required Winslow to file any Rule 60(b)(1) motion by July 22, 2011.

Winslow filed the Rule 60(b) Motion on May 3, 2013. Accordingly, the Court will deny
Winslow's Rule 60(b)(1) Motion as untimely.
For Rule 60(b)(6) motions, movants must file their motions "within reasonable time."

Fed. R. Civ. P. 60(c)(1). The Court denied Winslow's § 1983 action on July 22, 2010. Winslow

filed his Rule 60(b)(6) Motion almost three years later and only pursues the action due to his

reincarceration. (Rule 60(b) Mot. (ECF No. 97) 2.) While Winslow argues that he "tried in
every aspect that I personally could muster to gain judicial review of the assault" (id. at 4),
Winslow failed to communicate that purported interest to the Court until April 2012. Winslow

then waited an additional nine months to file his Rule 60(b)(6) Motion. Winslow fails to provide

a valid reason for the nearly three-year delay in bringing his Rule 60(b)(6) Motion.

See

McLawhom v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991) (emphasis added)
(citing cases for the proposition that "a Rule 60(b) motion is not timely brought when it is made

three tofour months after the original judgment and no valid reason is given for the delay").
Accordingly, the Court will deny the Rule 60(b)(6) Motion as untimely.

An appropriate Final Order shall issue.

/s/

Date: ^'//>
Richmond, Virginia

JohiaA. Gibney, Ir.

United States District Judge