Dancingbuck v. Haney et al
Filing
25
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/18/2018. (Copy mailed to Plaintiff) (smej, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
PUNALERO DANCINGBUCK,
Plaintiff,
Civil Action No.
V.
3:17CV660
WILLIAM R. HANEY, ^ al.,
Defendants.
MEMORANDUM OPINION
By Memorandum Opinion and Order entered on June 5, 2018,
the Court dismissed Punalero Dancingbuck's action filed pursuant
to 42 U.S.C, ยง 1983 because he failed to file a particularized
complaint within the fourteen (14) days allotted by the Court.
(ECF Nos. 16, 17.)
On August 28, 2018, the Court received from Dancingbuck a
''Motion
for
relief
investigation," that
from
the
judgment
Court
ex
parte,
construes
as
and
a
order
motion
pursuant to Federal Rule of Civil Procedure 60(b).
DOJ
filed
("Rule 60
(b) Motion," ECF No. 22); s^ In re Burnley, 988 F.2d 1, 3 (4th
Cir. 1993).
Rule 60(b) constitutes an extraordinary remedy requiring a
showing of extraordinary circumstances.
Dowell v. State
Farm
Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993).
A
party seeking relief under Federal Rule of Civil Procedure 60(b)
must
make
a
threshold
showing
of
^'timeliness,
a
meritorious
defense [or claim], a lack of unfair prejudice to the opposing
party,
and
exceptional
circumstances."
Id.
at
48
(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, 731
inadvertence,
F.2d at 207),
surprise,
or
which
excusable
are:
neglect;
(1)
mistake,
(2)
newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3)
fraud or misconduct of an adverse party; (4) a void judgment;
(5) a satisfied judgment; or (6) any other reason justifying
relief.
Fed. R. 60(b).
"When making a motion under Rule 60(b), the party moving
for relief must clearly establish the grounds therefor to the
satisfaction
of
the
district
court
and
clearly substantiated by adequate proof."
F.3d
at
omitted).
3
(citations
omitted)
such
grounds
much
be
In re Burnley, 988
(internal
quotation
marks
Here, Dancingbuck "requests this case stay in your
Court" because
Your first order and memorandum was not received
and/or served on plaintiff, you signed 04.30.18 and
your clerk mailed same time Sussex II on lock; Your
second order and memorandum was received and/or served
on plaintiff duly on 06.07.18 0 1319 hours, ordering
filing proper complaint with service of process also
documenting plaintiff rambling initial filing . . .
(Rule 60(b) Mot. 1.)
Dancingbuck then indicates that, instead
of filing a particularized complaint, or seeking relief from the
judgment
entered
on
June
5,
2018,
he
then
wrote
to
various
attorneys who he never heard back from.
Dancingbuck fails to
meet
60(b)
the
threshold
requirement
of
Rule
that
requires
assertion of a meritorious claim or extraordinary circumstances.
See Dowell, F.2d at 48; Square Constr. Co. v. Wash. Metro Area
Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981) (''As a threshold
matter,
the
meritorious
movant
claim
must
or
demonstrate
defense." (citing
the
existence
Compton
Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979))).
v.
Alton
of
a
S.S.
In his fifty-
six-page Complaint, Dancingbuck named countless defendants who
appear to have been involved in his state criminal proceedings
or in some fanciful conspiracy surrounding his conviction and in
his Rule 60(b) Motion he repeats a portion of these allegations
and complains about his medications being increased at the VDOC.
(Rule 60(b) 1.)
Dancingbuck fails to assert the existence of a
meritorious claim or defense.
Square Constr. Co., 657 F.2d at
71.
Moreover,
relief
under
Rule
60(b)
is
an
"extraordinary"
remedy "and is only to be invoked upon a showing of exceptional
circumstances."
Dancingbuck
Compton, 608 F.2d at 102 (citations omitted).
fails
to
demonstrate
any
such
extraordinary
circumstances that would warrant vacating the prior dismissal of
this
action.
prejudice.
Dancingbuck's
complaint
was
dismissed
without
He remains free to file a new complaint that will be
treated as a new civil action.
Accordingly,
will be denied.
The
Clerk
Dancingbuck's
Rule
60(b)
Motion
(ECF No.
1)
A certificate of appealability will be denied.
is
directed
to
send
a
copy
of
the
Memorandum
Opinion to Dancingbuck.
/./
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: ^
y
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