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May 21, 2003


The opinion of the court was delivered by: Robert Patterson, Senior District Judge.


Plaintiff Ellis Broadway Jr. ("Plaintiff") moves pro se pursuant to Rule 60(a) and (b) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.") to vacate a judgment entered February 24, 1997 dismissing his complaint for failure to prosecute. For the following reasons, Plaintiff's motion is denied.


On April 18, 1996, the Plaintiff, filed a Complaint alleging a civil rights violation against the City of New York, et. al.*fn1 On February 19, 1997 and February 21, 1997, the Plaintiff failed to appear for the Court scheduled conferences in his case. As a result, on February 24, 1997, the case was dismissed by this Court for failure to prosecute. On March 7, 1997, the Plaintiff filed a change of address with the Court. On April 1, 1997, Plaintiff filed a notice of appeal and he also applied to this Court for permission to file a late notice. On May 5, 1997, by memo endorsement, this Court granted Plaintiff's application to file an untimely appeal and also allowed Plaintiff to reopen his case before this Court within ten days. It was also noted that the Plaintiff had given incorrect addresses to the Court. The Plaintiff failed to reopen his case before this Court.

On May 7, 1997, Plaintiff's appeal was filed with the Second Circuit. The Second Circuit granted Plaintiff the opportunity to appeal his case and a scheduling order was filed on June 3, 1997. On June 5, 1997, a notice for a change of address was filed and is reflected on the District Court docket sheet.*fn2 On July 16, 1997, an order dismissing the appeal was filed for failure to comply with the scheduling order.

On November 4, 1997, the Plaintiff moved to reinstate his appeal. On November 5, 1997, an order was filed in the Court of Appeals denying Plaintiff's motion without prejudice to renewal upon submission of a brief and appendix. The Court of Appeals docket contains no entry since November 6, 1997, when the notice of the order was filed. The Plaintiff failed to perfect his appeal before the Court of Appeals.

On July 18, 2002, the Plaintiff sent the Court a Pro Se Memorandum indicating an address change to Sing Sing Correctional Facility.

On September 19, 2002, Plaintiff filed the instant pro se motion to reopen this case. Attached to his notice of motion, Plaintiff included pages 10-12 of his Criminal History report which indicate that on February 6, 1997 his parole was revoked and he was admitted to Downstate Correctional Facility.*fn3 He was released on July 7, 1997. He also attached medical reports from the Montefiore Medical Center Rikers Island Health Services which indicate that he had been seen on a few occasions in 1996.

On November 2, 2002, this Court stated, by memo endorsement, that it would deny Plaintiff's motion pursuant to Rule 60 of the Fed.R.Civ.P. unless Plaintiff filed an affidavit prior to December 6, 2002, stating good and sufficient reasons (1) for his failure to move to reopen this case pursuant to the Court's order of May 5, 1997, at any time prior to September 19, 2002 and (2) for his failure to perfect his appeal as permitted by the order of the Court of Appeals on November 5, 1997.

On November 14, 2002, Plaintiff submitted an affidavit in reply. He also attached a copy of a notice of admission to Mid-Hudson Forensic Psychiatry Center showing that he was admitted on September 7, 2000 and discharged December 5, 2000. He also included medical reports recorded during that hospitalization period. Plaintiff also attached pages 13-17 of his criminal history report which shows that he was: arrested on September 3, 1998 and sentenced on September 4, 1998 to five days imprisonment; arrested on November 29, 1998 and was sentenced the next day to ten days imprisonment; arrested on December 8, 1998 and sentenced to one day of community service; arrested and sentenced on January 29, 1999 to time served; arrested on March 11, 1999 and no disposition was recorded; arrested on September 13, 1999 and sentenced the next day to time served; arrested on November 15, 1999 and sentenced the next day to time served; and arrested on April 2, 2000 and sentenced on April 17, 2000 to sixty days imprisonment. The Plaintiff also attached a letter addressed to him at the Westchester County Jail, dated April 25, 2001, from the Legal Aid Society declining assistance with this action and referring him to the Bronx Bar Association and NYC Bar Association Referral Services.

On December 12, 2002, Plaintiff filed additional material in support of his November Affidavit related to his physical and mental health treatment. The medical reports reflect medical examinations in January through May of 1997 and earlier. The Plaintiff was also admitted to St. Barnabas Correctional Services on April 4, 2000 for a blood test and discharged on April 5, 2000. He was also examined on April 20, 2000 by a psychiatrist. The medical reports did not indicate any lengthy hospital stays, or describe any condition which would have prevented his making a motion pursuant to Rule 60(b) at an earlier date.


Plaintiff moves under Fed.R.Civ.P. 60(a) and (b), requesting the Court to exercise discretionary authority to grant relief from the judgment. A motion under Rule 60(a) applies to "clerical mistakes" in judgments and is not applicable here. Rule 60(b) permits this Court to relieve a party from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the operation of the judgment.

Rule 60(b)(1), (2), and (3) motions must be made "not more than one year after judgment." Fed.R.Civ.P. 60(b). As both the judgment of this Court and the mandate of the Court of Appeals were in 1997, the Plaintiff's motion to vacate dated September 19, ...

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