CASE NO.: 5:18-CV-253-TES-TQL
Presently pending before the Court is Plaintiff Sammie Davis King, Jr.'s "Motion for Relief under United States Constitution Art. 3, § 1" (ECF No. 9). Because Plaintiff is proceeding pro se, his pleadings must be liberally construed. See, e.g., Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). The undersigned will therefore consider Plaintiff's motion as being filed pursuant to Federal Rule of Civil Procedure 60, which provides a party with an avenue to seek relief "from a final judgment, order, or proceeding . . . ." Fed. R. Civ. P. 60(b). Under Rule 60(b), a court can provide relief from a judgment or order in the following limited circumstances:
(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 has been based on 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.Plaintiff has not clearly asserted that any of the first five specific circumstances apply to his case, and the undersigned therefore assumes that Plaintiff intends to rely on the "catch all" provision, Rule 60(b)(6). In his motion, however, Plaintiff merely reiterates his contention that his constitutional rights were violated in connection with his state court criminal conviction. This does not constitute "any other reason" justifying Rule 60(b)(6) relief in this case. Relief under Rule 60(b)(6) "is intended 'only for extraordinary circumstances.'" Olmstead v. Humana, Inc., 154 F. App'x 800, 805 (11th Cir. 2005) (per curiam) (citing Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000)). Accordingly, Plaintiff is required to "demonstrate a justification for relief so compelling that the district court was required to grant [the] motion." Id. (internal quotation marks omitted) (emphasis and alteration in original). Plaintiff has failed to offer a compelling reason for the Court to grant the relief he seeks. Indeed, in his motion, Plaintiff never actually addresses the Court's reasons for dismissing his Complaint: that Plaintiff is a "three-striker" who failed to allege that he was in imminent danger of serious physical injury. The undersigned therefore RECOMMENDS that Plaintiff's motion for relief (ECF No. 9) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation with the Honorable Tilman E. Self, III, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. Parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO RECOMMENDED, this 22nd day of January, 2020.
s/ Thomas Q. Langstaff
UNITED STATES MAGISTRATE JUDGE