CIVIL ACTION NO. 5:19-cv-00253-TES-TQL
ORDER ADOPTING THE UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
After a de novo review of the record in this case, the Court ADOPTS the United States Magistrate Judge's Report and Recommendation [Doc. 10] and MAKES IT THE ORDER OF THE COURT. 28 U.S.C. § 636(b)(1)(C). Consistent with the magistrate judge's recommendation, the Court DENIES Plaintiff's "Motion for Relief under United States Constitution Art. 3, § 1" [Doc. 9].
The Court thoroughly reviewed and considered Plaintiff's Objection [Doc. 11] to the Report and Recommendation and finds that it lacks merit. As a preliminary matter, the magistrate judge correctly construed the Plaintiff's motion as seeking relief from final judgment pursuant to Federal Rule of Procedure 60. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed."). The Court had previously dismissed his case without prejudice [Doc. 6], and the Court entered judgment [Doc. 7] on October 1, 2018. Plaintiff's in forma pauperis application [Doc. 2] was denied pursuant to the three-strikes provision of 28 U.S.C. § 1915(g). Plaintiff never filed an appeal, and judgment was entered almost a year before Plaintiff filed the present motion on September 20, 2019. [Doc. 9]. Therefore, Plaintiff's ability to reopen the time in which he can file an appeal has expired. See Federal Rule of Appellate Procedure 4(a)(6). Accordingly, the Court must construe the motion as a relief from final judgment pursuant to Federal Rule of Civil Procedure 60 for it to be valid.
Relief under Federal Rule of Civil Procedure 60(b) is only available under limited circumstances. Pursuant to Federal Rule of Civil Procedure 60(b), "the court may relieve a party . . . from a final judgment, order, or proceeding" if the party can show (1) a "mistake, inadvertence, surprise, or excusable neglect"; (2) "newly discovered evidence . . ."; (3) "fraud . . ., misrepresentation, or misconduct by an opposing party"; (4) that "the judgment is void"; (5) that "the judgment has been satisfied, released or discharged . . ."; or (6) "any other reason that justifies relief." However, in his lengthy objection, Plaintiff fails to provide any compelling reason that could justify relief under this rule.
Accordingly, the Court ADOPTS the United States Magistrate Judge's Report and Recommendation [Doc. 10]. The Court DENIES Plaintiff's motion.
SO ORDERED, this 13th day of February, 2020.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT