Supreme-El v. Director, Dept. of Corr., No. 3:2014cv00302 - Document 21 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 4/15/15. Copy sent: Yes (tdai, )
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Supreme-El v. Director, Dept. of Corr. Doc. 21 I L E |R| IN THE FOR THE UNITED STATES DISTRICT EASTERN DISTRICT FAPR I62015 COURT OF VIRGINIA P CLERK, U.S. DISTRICT COURT Richmond Division RICHMOND. VA METAPHYZIC EL-ECTROMAGNETIC SUPREME-EL, Petitioner, v. Civil Action No. DIRECTOR, DEPT. 3:14CV302 OF CORR., Respondent. MEMORANDUM OPINION By Memorandum Opinion and Order entered on June the Court petition dismissed for a writ Metaphyzic of El-Ectromagnetic habeas corpus pursuant 30, 2014, Supreme-El's to 28 U.S.C. § 2254 for failing to complete and return an in forma pauperis affidavit or to pay the $5.00 filing fee. On July 28, 2014, the Court denied Supreme-El's Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 59(e). On October 7, 2014, another attempt FOR RELIEF to FROM {ECF No. 12-13.) the Court received from Supreme-El, continue JUDGMENT to OR litigate ORDER this action, PURSUANT TO RULE a 60 yet "MOTION OF THE FED. R. CIV. P." ("Rule 60 (b) Motion," ECF No. 19.J1 A party seeking Procedure 60(b) 1 relief under Federal Rule of Civil must make a threshold showing of "* timeliness, Hereinafter, the Court corrects the spacing a and capitalization and adds emphasis to the quotations from SupremeEl's submission. Dockets.Justia.com meritorious defense, party, Fire and & a lack of unfair prejudice to the opposing exceptional Cas. Auto. Ins. (quoting Werner v. After then a party must 60(b)." circumstances.'" Co., Carbo, one F.2d 46, 48 v. 731 F.2d 204, 207 threshold showing, of the six specific State (4th this satisfies satisfy 993 Powell (4th Farm Cir. Cir. "he 1993) 1984)). [or of sections she] Rule Id^ (citing Werner, 731 F.2d at 207). Supreme-El's request for relief under Rule 60(b)(1), four months after the dismissal of his § 2254 petition, filed within a Co. , Inc. , reasonable time. 924 F.2d 535, 538 McLawhorn v. (4th Cir. 1991) filed was not John W. Daniel & ("We have held on several occasions that a Rule 60(b) motion is not timely brought when it is made three to four months after the original judgment and no valid reason is given for the delay." (citing Operating Co. v. Utility Workers of Am., 491 F.2d 245 1974); Consol. Corp. , 383 Rule 60(b) Masonry F.2d 249 is an & (4th Cir. showing of v. Co., S.S. (citations omitted). extraordinary 608 F.2d Supreme-El circumstances prior denial of his § 2254 petition. (4th Cir. Wagman "and Constr. relief under is only circumstances." 96, fails that v. Moreover, remedy exceptional Inc., Inc. 1967))). "extraordinary" invoked upon a Alton Fireproofing, 102 (4th warrant to be Compton Cir. to demonstrate would Cent. 1979) any such vacating the Even if Supreme-El bringing a Rule 60 (b) entitled to relief from excusable 60(b) relief Motion, the judgment for threshold 60(b)(1). "mistake, Fed. requirements for he fails to demonstrate that he is under Rule neglect." Motion, met R. Rule 60(b)(1) inadvertence, Civ. P. permits surprise, 60(b)(1). In his or Rule Supreme-El offers several theories for relief that lack factual or legal support. Supreme-El claims that on May 21, 2014, he received a Memorandum Order directing him to complete the in forma pauperis affidavit or pay $5 within fifteen days. He and contends that he returned it (Rule 60(b) Mot. % l.)2 "completed the this to in forma pauperis affidavit a court in timely matter other documents regarding civil action 3:14cv052, petition which was entered into Friday evening May 30th, 2014." the along for a separate prison mailing (Id. 1 2.)3 with system on He then correctly 2 The Court notes that this is impossible because the Court only entered the Memorandum Order directing him to submit the in forma pauperis affidavit or pay in this action on May 21, 2014. (See ECF No. 5 .) 3 Supreme-El's statement is incorrect again. In the case 3:14cv52, Supreme-El submitted an in forma pauperis affidavit on January 27, 2014. (ECF No. 2.) Contrary to his statement, Supreme-El did not submit an in forma pauperis affidavit in either action on May 30, 2014. Instead, in 3:14cv52, he filed a Motion for Summary Judgment, a Brief in Opposition, and an Affidavit of Truth on May 30, 2014 that the Court received on June 5, 2014. (ECF Nos. 20-22.) Supreme-El never submitted an in forma pauperis affidavit in the instant action, and only submitted the $5 filing fee on July 17, 2014, after the Court dismissed the action. (See ECF Nos. 7-9.) asserts that by Memorandum Opinion and Order entered June 30, 2014, the Court dismissed the action because Supreme-El neither filed an (Id. in forma H 3.) accordance mailing affidavit nor the $5 filing fee. Supreme-El provides that he "moves for relief in with mistake, pauperis Rule 60(b) (1) inadvertence, the in certificate of forma of surprise, pauperis the or Fed. Civ. excusable without service dated May 30, R. 2014 P. for: neglect; including which was it on (1) for the considered as failing to return the in forma pauperis affidavit within the 15 day period ordered by this court." (Id. H 7.) Alternatively, he claims Relief under Rule 60(b)(1) should be available whether the Petitioner failed to include the in forma pauperis affidavit on the certificate of service or failing to return it; failing to pay the fee within the time period specified; or whether the Clerk overlooked the in forma pauperis affidavit which was returned along with other documents in separate action on May 30th, 2014 (Id. as A.D. K 8.) recited Putting aside any errors in the procedural history by Supreme-El, he fails entitlement to relief under Rule 60(b)(1). El failed to to demonstrate Simply put, any Supreme- return the in forma pauperis affidavit or pay the $5 filing fee within fifteen days of the May 21, 2014 Memorandum Order directing him to do so. Supreme-El only attempted to pay the filing fee after the Court dismissed his action on June 30, 2014. Supreme-El offers no explanation for his failure to follow the "mistake, Court's directives, inadvertence, surprise, for relief under Rule 60(b)(1). will be denied. The Clerk thus he fails to demonstrate or excusable neglect" required Supreme-El's Rule 60(b) Motion A certificate of appealability will be denied. is directed to send a copy of the Memorandum Opinion to Supreme-El. /s/ /st/1 Robert E. Payne Senior United States District Judge Richmond, Virginia Date: fyultfj?***
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