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Wheeler v. Pataki

February 12, 2008

PETER WHEELER, PLAINTIFF,
v.
GOVERNOR GEORGE PATAKI; DONALD SAWYER; MOHAMMED IGBAL, M.D.; NURUL HOGUE, M.D.; AND HAROLD D. GRAHAM, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. Mcavoy, Senior U.S. District Judge

DECISION and ORDER

Plaintiff Peter Wheeler filed a civil rights complaint. Dkt. No. 1. Thereafter, plaintiff filed an amended civil rights complaint*fn1 which, although not a model of clarity, appeared to allege that the defendants failed to protect plaintiff from being sent to the Central New York Psychiatric Center ("CNYPC"), denied him due process before sending plaintiff to CNYPC, and retaliated against plaintiff because plaintiff was successful in a prior lawsuit he filed in this District. Dkt. No. 5. Plaintiff sought "freedom from prison" and monetary damages. Id. at 18. By Order of this Court filed October 10, 2007, plaintiff's complaint was dismissed for failure to state a claim. Dkt. No. 8 ("October Order"). Plaintiff was advised that he had failed to allege specific acts of misconduct on the part of some of the defendants, some of the allegations contained in plaintiff's complaint were untimely filed, and although the amended complaint contained allegations of wrongdoing that occurred at Upstate Correctional Facility, Franklin Correctional Facility, Attica Correctional Facility, and Cayuga Correctional Facility, the defendants named were located at Auburn Correctional Facility and CNYPC. Id. at 3-4. With respect to plaintiff's request for "freedom from prison [and] no CNYPC," the October Order advised plaintiff as follows:

To the extent that plaintiff seeks to alter the fact or duration of his custody, he is advised that such relief may only be obtained by way of a habeas corpus petition. See Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir. 1994) ("habeas corpus -- not a § 1983 action -- provides the sole federal remedy where a state prisoner challenges the fact or duration of his imprisonment ....") (citing Preiser v. Rodriguez, 411 U.S. 475, 490 (1973)).

Dkt. No. 8 at 4-5.

For the reasons more fully set forth in the October Order, plaintiff's amended complaint was dismissed, and plaintiff was permitted an opportunity to submit a second amended complaint to cure the defects contained in the amended complaint. Id. at 5-6. The second amended complaint was to be submitted for filing within thirty days of the filing date of the October Order.*fn2 Id. By Order of Magistrate Judge Lowe filed on October 19, 2007, plaintiff was granted an extension of time until November 20, 2007 to file the second amended complaint. Dkt. No. 11. Because plaintiff did not file a second amended complaint with the Court as required by the October Order, on December 28, 2007, the Court entered judgment against plaintiff, dismissing this action in accordance with the Court's October Order. Dkt. No. 12.

Presently before the Court is plaintiff's motion for relief from judgment (Dkt. No. 13) pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."). Rule 60(b) states:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(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 is 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 ...


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