Freeman v. Rickard

Filing 21

MEMORANDUM OPINION AND ORDER: Pending before the court is plaintiff's 20 motion for leave to file late objections which the court has construed as plaintiff's motion seeking relief under Federal Rule of Civil Procedure 59(e) or 60(b). For the reasons set forth herein, the court DENIES plaintiff's 20 motion. If plaintiff wishes to appeal this Memorandum Opinion and Order, he will need to file a notice of appeal. Signed by Senior Judge David A. Faber on 12/11/2018. (cc: counsel of record and unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ANTONIO FREEMAN,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-01950

JENNIFER SAAD, WARDEN,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion for leave to
file late objections.

(ECF No. 20).

However, on November 9,

2018, a judgment order dismissing this matter with prejudice was
entered.

Therefore, the court has construed plaintiff’s motion

as one seeking relief under Federal Rule of Civil Procedure 59(e)
or 60(b).1
As our appeals court has noted, “the Federal Rules of Civil
Procedure allow a litigant subject to an adverse judgment to file
either a motion to alter or amend the judgment pursuant to Rule
59(e) or a motion seeking relief from the judgment pursuant to
Rule 60(b).

Although the two rules appear similar, they are in

fact quite distinct.”

Robinson v. Wix Filtration Corp, LLC, 599

F.3d 403, 411 (4th Cir. 2010).

“A Rule 59(e) motion may only be

A motion to alter or amend a judgment pursuant to Federal
Rule of Civil Procedure 59(e) “must be filed no later than 28
days after the entry of the judgment.” Plaintiff’s filing is
postmarked December 7, 2018, which would fall within the 28-day
window.
1

granted in three situations: `(1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.’”

Mayfield v. National Ass’n for

Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012)
(quoting Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)).
“It is an extraordinary remedy that should be applied sparingly.”
Id.
Rule 60(b) of the Federal Rules of Civil procedure provides
in pertinent part:
On motion and just terms, the court may relieve a party
. . . from a final judgment, order, or proceeding for
the following 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
misconduct by an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or
discharged; it is based upon 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.
Relief from final judgment under Rule 60(b) is an extraordinary
remedy that “is only to be invoked upon a showing of exceptional
circumstances.”

Pressley Ridge Schools v. Lawton, 180 F.R.D.

306, 308 (S.D.W. Va. 1998).

Dispositions of Rule 60(b) motions

are reviewed for abuse of discretion.

See id.

Plaintiff seeks to reopen the time for filing objections
arguing that “during the period to object he was transferred
2

between prison[s] and lacked accessed [sic] to a library or
material need[ed] to object.”

ECF No. 20 at p.1.

However, when

the Proposed Findings and Recommendation was filed, the BOP
Inmate Locator indicated that plaintiff was incarcerated at FCI
Gilmer where he remains incarcerated today.

See ECF No. 20 at

p.3.
Under these circumstances, the court cannot conclude that
Rule 59(e) relief is necessary to prevent manifest injustice.2
Nor can the court conclude that plaintiff has demonstrated the
type of excusable neglect that would entitle him to relief under
Federal Rule of Civil Procedure 60(b)(1).

Finally, plaintiff has

not shown that he is entitled to relief under Rule 60(b)(6).3
For all these reasons, plaintiff’s

motion is DENIED.4

The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and unrepresented parties.
IT IS SO ORDERED this 11th day of December, 2018.
ENTER:
David A. Faber
Senior United States District Judge
Plaintiff does not argue that there has been an
intervening change of controlling law, that new evidence has
become available, or that clear error has occurred.
2

The other grounds for relief under Rule 60(b) clearly do
not apply.
3

If plaintiff wishes to appeal this Memorandum Opinion and
Order, he will need to file a notice of appeal.
4

3