Dancingbuck v. Haney et al, No. 3:2017cv00660 - Document 25 (E.D. Va. 2018)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/18/2018. (Copy mailed to Plaintiff) (smej, )
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Dancingbuck v. Haney et al Doc. 25 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division PUNALERO DANCINGBUCK, Plaintiff, Civil Action No. V. 3:17CV660 WILLIAM R. HANEY, ^ al., Defendants. MEMORANDUM OPINION By Memorandum Opinion and Order entered on June 5, 2018, the Court dismissed Punalero Dancingbuck's action filed pursuant to 42 U.S.C, ยง 1983 because he failed to file a particularized complaint within the fourteen (14) days allotted by the Court. (ECF Nos. 16, 17.) On August 28, 2018, the Court received from Dancingbuck a ''Motion for relief investigation," that from the judgment Court ex parte, construes as and a order motion pursuant to Federal Rule of Civil Procedure 60(b). DOJ filed ("Rule 60 (b) Motion," ECF No. 22); s^ In re Burnley, 988 F.2d 1, 3 (4th Cir. 1993). Rule 60(b) constitutes an extraordinary remedy requiring a showing of extraordinary circumstances. Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). A party seeking relief under Federal Rule of Civil Procedure 60(b) Dockets.Justia.com must make a threshold showing of ^'timeliness, a meritorious defense [or claim], a lack of unfair prejudice to the opposing party, and exceptional circumstances." Id. at 48 (quoting Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984)). After a party satisfies this threshold showing, "he [or she] then must satisfy one of the six specific sections of Rule 60(b)," id. (citing Werner, 731 inadvertence, F.2d at 207), surprise, or which excusable are: neglect; (1) mistake, (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud or misconduct of an adverse party; (4) a void judgment; (5) a satisfied judgment; or (6) any other reason justifying relief. Fed. R. 60(b). "When making a motion under Rule 60(b), the party moving for relief must clearly establish the grounds therefor to the satisfaction of the district court and clearly substantiated by adequate proof." F.3d at omitted). 3 (citations omitted) such grounds much be In re Burnley, 988 (internal quotation marks Here, Dancingbuck "requests this case stay in your Court" because Your first order and memorandum was not received and/or served on plaintiff, you signed 04.30.18 and your clerk mailed same time Sussex II on lock; Your second order and memorandum was received and/or served on plaintiff duly on 06.07.18 0 1319 hours, ordering filing proper complaint with service of process also documenting plaintiff rambling initial filing . . . (Rule 60(b) Mot. 1.) Dancingbuck then indicates that, instead of filing a particularized complaint, or seeking relief from the judgment entered on June 5, 2018, he then wrote to various attorneys who he never heard back from. Dancingbuck fails to meet 60(b) the threshold requirement of Rule that requires assertion of a meritorious claim or extraordinary circumstances. See Dowell, F.2d at 48; Square Constr. Co. v. Wash. Metro Area Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981) (''As a threshold matter, the meritorious movant claim must or demonstrate defense." (citing the existence Compton Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979))). v. Alton of a S.S. In his fifty- six-page Complaint, Dancingbuck named countless defendants who appear to have been involved in his state criminal proceedings or in some fanciful conspiracy surrounding his conviction and in his Rule 60(b) Motion he repeats a portion of these allegations and complains about his medications being increased at the VDOC. (Rule 60(b) 1.) Dancingbuck fails to assert the existence of a meritorious claim or defense. Square Constr. Co., 657 F.2d at 71. Moreover, relief under Rule 60(b) is an "extraordinary" remedy "and is only to be invoked upon a showing of exceptional circumstances." Dancingbuck Compton, 608 F.2d at 102 (citations omitted). fails to demonstrate any such extraordinary circumstances that would warrant vacating the prior dismissal of this action. prejudice. Dancingbuck's complaint was dismissed without He remains free to file a new complaint that will be treated as a new civil action. Accordingly, will be denied. The Clerk Dancingbuck's Rule 60(b) Motion (ECF No. 1) A certificate of appealability will be denied. is directed to send a copy of the Memorandum Opinion to Dancingbuck. /./ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: ^ y
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