The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge
Presently before the Court is a Motion to Vacate Judgment filed by Plaintiff Eddie Robinson. Dkt. No. 14. Plaintiff filed this action on November 15, 2005. By Order dated January 6, 2006, this Court directed Plaintiff to file an amended Complaint, granted Plaintiff's application to proceed in forma pauperis, denied Plaintiff's Motion for Appointment of Counsel, and denied Plaintiff's Motion to Consolidate this §1983 action with his pending habeas petition. Dkt. No. 6. Plaintiff filed his amended Complaint on February 3, 2006. Dkt. No. 8.
On March 24, 2006 this Court issued an Order that advised Plaintiff: With respect to Plaintiff's claims relating to his sentence calculation and the propriety of his ongoing detention, it is well settled that Plaintiff may not bring such an action, pursuant to 42 U.S.C. §1983, unless Plaintiff can also "prove that the ... sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. §2254. A claim for damages bearing that relationship to a ... sentence that has not been so invalidated is not cognizable under §1983." Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Plaintiff presently has a Petition pursuant to 28 U.S.C. §2254 pending in this Court. In the event he is successful on that Petition, he may then pursue his claim for damages for wrongful detention. However, such claim can not presently be pursued by Plaintiff based upon the facts presently before this Court.
Dkt. No. 9. Thus, this Court found that:
In light of Plaintiff's pro se status, and his good faith effort to comply with the prior Order of this Court, he will be permitted one final opportunity to set forth, in a second Amended Complaint, his factual allegations supporting his claims for deliberate indifference, sexual harassment and abuse, as well as any other claims that do not relate to the calculation of his sentence or his ongoing detention. Id.
Plaintiff filed his second amended Complaint on April 17, 2006. Dkt. No. 11. On June 6, 2006 this Court issued an Order that held:
A review of the amended Complaint reveals that Plaintiff wholly ignored the admonishment contained in the March Order. Plaintiff has set forth in the second amended Complaint allegations and claims relating solely to his contention that his sentence has been improperly calculated and that he is being illegally detained. Those allegations are the basis for the habeas Petition Robinson has pending before this Court. However, that Petition has not been resolved, and Plaintiff's sentence has not been reversed or declared invalid. Accordingly, the second amended Complaint fails to state a claim upon which relief may be granted by this Court, and it will be dismissed.
Dkt. No. 12. Judgment was entered on June 6, 2006 dismissing this action. Dkt. No. 13. Plaintiff filed his Motion to vacate the Judgment on February 28, 2008. Dkt. No. 14.
Plaintiff brings this Motion to Vacate Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). In support of his Motion, Plaintiff alleges that there is newly discovered evidence that his sentence has been improperly calculated, and that he is being wrongfully detained.*fn1 Dkt. No. 14. However, Plaintiff does not present this Court with any evidence that establishes that his sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.
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, ...