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SENOR v. McGRATH

United States District Court, S.D. New York


April 27, 2004.

CHANEL SENOR, Plaintiff, -v- H. McGRATH, et al., Defendants

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

ORDER

By Order dated September 26, 2003, the Court dismissed the Complaint in this action without prejudice. On October 16, 2003, Plaintiff filed a notice of appeal of the September 26th Order. On December 10, 2003, Plaintiff filed, pursuant to Federal Rule of Civil Procedure 60(b), a motion for reconsideration of the September 26th Order. For the following reasons, Plaintiff's motion is denied.*fn1

Rule 60(b) provides that a court may relieve a party from a final judgment for the 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, released or discharged . . .; (6) any other reason justifying relief from the operation of the judgment." FED. R. CIV. P. 60(b). "A movant under Rule 60(b) must demonstrate `exceptional circumstances' justifying the extraordinary relief requested." Employers Mutual Casualty Co. v. Key Pharmaceuticals, 75 F.3d 815, 824-25 (2d Cir. 1996).

  Plaintiff does not identify the provision of Rule 60(b) under which he seeks relief from judgment. The primary basis of his motion appears to be the contention that the Court overlooked a letter with certain attached documents that Plaintiff had sent the Court in opposition to Defendants' motion to dismiss the Complaint. As reflected in the September 26th Order, the Court indeed did receive and review Plaintiff's letter dated June 21, 2002, and the exhibits attached thereto. See Order dated September 26, 2003, at 4. Plaintiff also renews his argument that he has exhausted fully all of his available remedies with respect to his excessive force claim. The instant motion is therefore an attempt by Plaintiff "to relitigate matters already resolved by the court adversely to [him]," which is not a basis for relief under Rule 60(b). Batac Development Corp. v. B&R Consultants Inc., No. 98 Civ. 721, 2000 WL 307400, at *3 (S.D.N.Y. March 23, 2000). Furthermore, Plaintiff has not shown that relief from judgment is appropriate for any of the reasons enumerated in Rule 60(b). Accordingly, Plaintiff's motion for reconsideration is denied.

  The Court certifies pursuant to 28 U.S.C. ยง 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

  SO ORDERED.


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