Marshall v. Payne et al

Filing 52

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 06/08/2015. Copy mailed to plaintiff. (tjoh, )

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

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JUN - • 9 2015
CLERK, U.S. DISTRICT COURT
RICHMOND. VA

KALVIN MARSHALL,

Plaintiff,
V.

Civil Action No. 3:13CV286

ROBERT E. PAYNE, et aL,
Defendants.
MEMORANDUM OPINION

By Memorandum Opinion and Order entered April 3, 2015, the Court dismissed a Bivens

action' filed by Kalvin Marshall. On May 18, 2015, the Court received a letter motion from
Marshall in which he requests his "time frame [to] be restored" so he can file a Federal Rule of
Civil Procedure 59(e) Motion. ("Motion for Extension of Time," ECF No. 47.) Marshall

explains that he only received the Court's April 3, 2015 Memorandum Opinion and Order

dismissing the case on May 8, 2015. {Id at 1.) A Rule 59(e) Motion must be filed "no later than

28 days after the entry of the judgment." Fed. R. Civ. P. 59(e). The Court lacks the authority to
extend the time period in which to file a Rule 59(e) Motion. See Fed. R. Civ. P. 6(b)(2).
Accordingly, Marshall's Motion for Extension of Time (ECF No. 47) will be DENIED.
On May 26, 2015, the Court received Marshall's timely Notice of Appeal (ECF No. 48)
and a Federal Rule of Civil Procedure 59(e) Motion (ECF No. 49). Because Marshall filed this

motion outside of the twenty-eight day period permitted for Rule 59(e) motions, this motion is
properly construed as a motion under Federal Rule of Civil Procedure 60(b) ("Rule 60(b)

Bivens v. Six Unknown Named Agents ofFed. Bureau ofNarcotics, 403 U.S. 388
(1971).

1

Motion"). See United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003) (citing Small v.
Hunt, 98 F.3d 789, 797 (4th Cir. 1996)).
Federal Rule of Civil Procedure 60(b) allows a court to "relieve a party ... from a final

judgment, order, or proceeding." Fed. R. Civ. P. 60(b). It is an extraordinary remedy requiring a

showing of exceptional circumstances. Mayfield v. Nat 7 Ass 'nfor Stock Car Auto Racing, Inc.,
674 F.3d 369, 378 (4th Cir. 2012) (citing Ackermann v. United States, 340 U.S. 193, 202

(1950)). The party seeking relief under Rule 60(b) must make a threshold showing of
"'timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and

exceptional circumstances.'" Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48

(4th Cir.1993) (quoting Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984)). After a party
satisfies this threshold showing, "he [or she] then must satisfy one of the six specific sections of
Rule 60(b)." Id. (citing Werner, 131 F.2d at 207).

Marshall first argues that the Court erred by failing to identify under which section of 28
U.S.C. § 1915(e)(2) it dismissed his claims for monetary damages. (Rule 60(b) Mot. 4-5.)
Marshall contends that the Court should have identified that its dismissal was pursuant to 28

U.S.C. § 1915(e)(2)(B)(iii)^ because the Court concluded that Defendants were entitled to
judicial immunity for their actions taken inMarshall's criminal proceedings. Marshall then
repeats the Court's conclusions in the Memorandum Opinion and vaguely suggests that they are
incorrect for reasons previously stated in his Complaint. Marshall fails to demonstrate any

exceptional circumstances thatwould warrant vacating the dismissal of hisBivens action. Thus,

^Title 28 section 1915(e)(2)(B)(iii) permits the Courtto dismiss an action if it "seeks
monetary reliefagainst a defendant who is immune from suchrelief" 28 U.S.C.
§ 1915(e)(2)(B)(iii). While the Court could have dismissed the action specifically under 28
U.S.C. § 1915(e)(2)(B)(iii), the Courtalso found the action frivolous, anotherground for
dismissal, under 28 U.S.C. § 1915(e)(2)(B)(i).

he fails to make the threshold showing required to bring a Rule 60(b) Motion. Accordingly,

Marshall's Rule 60(b) Motion (ECF No. 49) will be DENIED.
An appropriate Order shall issue.

/S/

Date:^ S

James R. Spencer

Richmond, Virginia

Senior U. S. District Judge