Campbell v. United States of America
Filing
137
MEMORANDUM OPINION AND ORDER denying plaintiff's 136 MOTION for relief from final judgment order pursuant to Federal Rule of Civil Procedure 60(b). Signed by Judge John T. Copenhaver, Jr. on 5/27/2011. (cc: plaintiff, FMC Lexington; attys; appellate case manager) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
FREDDY S. CAMPBELL,
Plaintiff,
v.
Civil Action No. 2:09-0503
UNITED STATES OF AMERICA, and
CARTER COUNTY DETENTION CENTER and
RANDY BINION, Chief Jailer -Carter County Detention Center and
JOHN PERRINE, Supervising Marshal -United States Marshals Service and
BRENDA WILBURN, R.N.- Carter County Detention Center,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff’s motion for relief from final
judgment order pursuant to Federal Rule of Civil Procedure 60(b)
(“Rule 60(b) motion”), filed May 23, 2011.
On January 31, 2011, the court entered its Judgment
dismissing this action.
On March 23, 2011, plaintiff, who was
represented by counsel until May 6, 2011, filed a notice of
appeal pro se.
The appeal is pending.
In Fobian v. Storage Technology Corp., 164 F.3d 887
(4th Cir. 1999), the court of appeals addressed the proper
treatment of a Rule 60(b) motion when an appeal from the
associated judgment is pending:
In sum, when a Rule 60(b) motion is filed while a
judgment is on appeal, the district court has
jurisdiction to entertain the motion, and should do so
promptly. If the district court determines that the
motion is meritless, as experience demonstrates is
often the case, the court should deny the motion
forthwith; any appeal from the denial can be
consolidated with the appeal from the underlying order.
If the district court is inclined to grant the motion,
it should issue a short memorandum so stating. The
movant can then request a limited remand from this
court for that purpose. By saving judicial resources
and avoiding expense and delay, this procedure accords
with the overarching mandate in the Federal Rules of
Civil Procedure that the rules “shall be construed to
secure the just, speedy, and inexpensive determination
of every action.”
Id. at 891 (emphasis added).
Plaintiff’s Rule 60(b) motion asserts, in essence, that
his former counsel acted negligently in prosecuting this case.
If plaintiff wishes to pursue a claim for legal malpractice, he
must do so in a separate civil action.
He may not embed such a
claim, and secure a remedy, within this case.
Moreover, the Rule 60(b) motion lacks sufficient detail
explaining why counsel’s actions fell below the applicable
standard of care.
In other instances, plaintiff simply misstates
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the record.
For example, plaintiff asserts that counsel’s
actions resulted in the limitations period running on claims
against the Bureau of Prisons.
In actuality, the Bureau of
Prisons is not a proper party in a suit brought pursuant to the
Federal Tort Claims Act (FTCA”).
The United States is the only
cognizable defendant under the FTCA, not its agencies or
instrumentalities.
See, e.g., 28 U.S.C. § 1346(b); 28 U.S.C. §
2679(a).
Based upon the foregoing, it is ORDERED that the Rule
60(b) motion be, and it hereby is, denied.
The Clerk is directed to transmit a copy of this
written opinion and order to the appellate case manager.
The
Clerk is further directed to forward copies to all counsel of
record and plaintiff, at the following address:
Freddy S. Campbell,
#05722-088
Federal Medical Center
P. O. Box 14500
Lexington, KY 40512
DATED: May 27, 2011
John T. Copenhaver, Jr.
United States District Judge
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