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
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. § 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).