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Ross v. Cooper

November 24, 2008


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Plaintiff Lloyd Ross, appearing pro se, brings a Motion for Reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, seeking to set aside this Court's August 5, 1991 order dismissing his complaint with leave to amend and this Court's March 24, 1993 order dismissing the case for failure to prosecute. For the reasons set forth below, plaintiff's motion is DENIED.


On January 18, 1990, Plaintiff Ross filed a pro se action against Defendant New York City Department of Corrections under 42 U.S.C. § 1983 to recover damages for injuries that New York City correction officers allegedly inflicted.*fn1 On August 5, 1991, this Court granted the New York City Department of Corrections's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a § 1983 claim against the department.*fn2 In granting the motion to dismiss, this Court ruled that the complaint asserted "no facts substantiating the existence of a New York City policy of brutality against prisoners, or of the City's'deliberate indifference to the constitutional rights of persons within its domain.'" Ross v. Cooper et al., 1991 WL 155578, No. 90 Civ. 304 (MBM), at *2 (S.D.N.Y. Aug. 5, 1991) (quoting Fiacco v. City of Rensselaer, 718 F.2d 319, 326 (2d Cir. 1986)). This Court further held that Ross's "presentation of only a single incident of misbehavior [was]'insufficient as sole support for an inference that a municipal policy or custom caused the incident.'" Ross, 1991 WL 155578, at *2 (quoting City of Oklahoma v. Tuttle, 471 U.S. 808, 824 (1985)). And in light of Ross's failure to allege facts showing that the Corrections Department "was knowingly and deliberately indifferent to the possibility that its correction officers routinely used excessive force[,]" this Court found that "the alleged assault by individual officers upon plaintiff fail[ed] to establish a City policy of condonation or indifference." Ross, 1991 WL 155578, at *2.

The dismissal of the complaint was without prejudice to Ross's right to replead should he be able to allege facts sufficient to support a § 1983 claim. Ross, 1991 WL 155578, at *2. During the nineteen months following this Court's ruling on the motion to dismiss, Ross failed to so amend his complaint. Accordingly, on March 24, 1993, this Court ordered the action dismissed and closed the case due to Ross's failure to prosecute. (Docket No. 29.)

More than fifteen years after this Court terminated the case, Ross now seeks to resurrect his claims. On November 3, 2008, this Court received the instant Rule 60(b) motion seeking reconsideration of the August 5, 1991 order dismissing the complaint and the March 24, 1993 order dismissing the case for failure to prosecute. In the two substantially similar affidavits that Ross submitted in support of this motion, he seeks reconsideration on the grounds that he is "unable to work due to the damage done to [his] body while serving term at the George Mo[t]chan Correctional Facility and [is] unable to help [him]self and [his] family."*fn3 (Affidavits of Lloyd Ross in Support of Motion for Reconsideration, Oct. 15, 2008 ("Ross Affidavits"), at 1.) Ross identifies no other grounds for reconsideration.


From Plaintiff Ross's motion papers, the rule under which he seeks reconsideration is unclear. But because his motion was not "served within ten (10) days after the entryof the court's determination of the original motion" to dismiss, pursuant to Local Civil Rule 6.3, this Court treats the reconsideration motion as filed under Rule 60(b), rather than Rule 59(e), of the Federal Rules of Civil Procedure. See Briller v. Barnhart, No. 04 Civ. 3649 (RWS), 2006 WL 118367, at *1 n.1 (S.D.N.Y. Jan. 16, 2006) (treating pro se plaintiff's reconsideration motion as filed pursuant to Rule 60(b) rather than Rule 59(e), where reconsideration motion was filed more than ten days after entry of court's determination of original motion.) This Court has summarized the law governing relief under Rule 60(b) as follows:

Rule 60(b) is designed to strike a balance between serving the ends of justice and preserving the finality of judgments. A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances. In addition to demanding that the movant show exceptional circumstances, the courts of this circuit also require that the evidence in support of the motion be highly convincing, that the movant show good cause for the failure to act sooner, and that no undue hardship be imposed on the other parties as a result.

Freedom, N.Y., Inc. v. United States, 438 F. Supp. 2d 457, 462 (S.D.N.Y. 2006) (citations and internal quotation marks omitted). See also Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)

For purposes of this reconsideration motion, this Court presumes that Ross is complaining about the same incident cited in his original lawsuit. Any new Section 1983 claim arising from injuries Ross suffered while in prison in 1989 would be untimely; claims under 42 U.S.C. § 1983 must be commenced within three years of the alleged violation. Orniston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) ("In section 1983 actions, the applicable limitations period is found in the'general or residual [state] statute [of limitations] for personal injury actions.'") (quoting Owens v. Okure, 488 U.S. 235, 249--50, 109 S.Ct. 573, 581--82 (1989)) (alterations in original); Orniston, 117 F.3d at 71 ("New York's three-year statute of limitations for unspecified personal injury actions, New York Civil Practice Law and Rules § 214(5), governs section 1983 actions in New York.") (citing Owens, 488 U.S. at 251, 109 S.Ct. at 582).

(observing that Rule 60(b) "should be broadly construed to do substantial justice, yet final judgments should not be lightly reopened") (citation omitted).

Pursuant to Rule 60(b), "[o]n motion and just terms, a court may relieve a party or its legal representative from a final judgment, order, or ...

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