United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
Anthony Earl Ridley brings this pro se civil rights
action under 42 U.S.C. § 1983. Although Plaintiff was
incarcerated at the Lansing Correctional Facility at the time
of filing, the acts giving rise to his Complaint occurred
while he was in custody at El Dorado Correctional Facility in
El Dorado, Kansas. The Court granted his motion to proceed
in forma pauperis. On April 3, 2018, the Court
entered a Notice and Order to Show Cause (Doc. 6)
(“NOSC”), directing Plaintiff to either show good
cause why his claims should not be dismissed for the reasons
set forth in the NOSC or to file a proper amended complaint
to cure the deficiencies. Plaintiff filed an Amended
Complaint (Doc. 8). On December 14, 2018, the Court entered a
Memorandum and Order and Order to Show Cause (Doc. 9)
(“MOSC”), granting Plaintiff until January 2,
2019, to either show good cause why his Amended Complaint
should not be dismissed or to file a proper second amended
complaint. Plaintiff failed to respond, and the Court
dismissed this case for failure to state a claim on January
4, 2019. On May 9, 2019, Plaintiff filed a “Motion for
Reconsideration of Void Judgment and Partial Summary
Judgment” (Doc. 13).
Rule 7.3 provides that “[p]arties seeking
reconsideration of dispositive orders or judgments must file
a motion pursuant to Fed.R.Civ.P. 59(e) or 60.” D. Kan.
Rule 7.3(a). Because Plaintiff's motion was filed more
than 28 days after the entry of the order, the Court will
treat it as a motion under Rule 60. See Fed. R. Civ.
P. 59(e) (“A motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the
motion is treated as a motion filed under Rule 60(b) of the
Federal Rules of Civil Procedure, seeking relief from
judgment entered in this matter. See Weitz v. Lovelace
Health System Inc., 214 F.3d 1175, 1178 (10th
Cir. 2000). Rule 60(b) provides in relevant part that:
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 justifies relief.
Fed. R. Civ. P. 60(b).
60(b) motion provides extraordinary relief which “may
only be granted in exceptional circumstances.”
Amoco Oil Co. v. United States Environmental Protection
Agency, 231 F.3d 694, 697 (10th Cir. 2000). The decision
to grant such relief “is extraordinary and may only be
granted in exceptional circumstances.” Servants of
the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.
2000) (quotation marks omitted).
does not assert relief under any of the subsections in Rule
60(b), but he does title his motion as a “motion for
reconsideration of void judgment.” Rule 60(b)(4)
provides that the Court may relieve a party from a final
judgment if the judgment is void. Fed.R.Civ.P. 60(b)(4).
“A judgment is void only if the court which rendered it
lacked jurisdiction of the subject matter, or of the parties,
or acted in a manner inconsistent with due process of
law.” Alford v. Cline, 2017 WL 2473311, at *2
(10th Cir. June 8, 2017) (unpublished) (quoting United
States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002)).
“Because § 1915A requires a district court to
dismiss a prisoner's civil action for failure to state a
claim as soon as practicable, a judgment dismissing such an
action before service of process isn't void for lack of
personal jurisdiction.” Robertson v. Kansas,
624 Fed.Appx. 969, 971 (10th Cir. 2015) (unpublished).
process is satisfied if “fundamental procedural
prerequisites-particularly, adequate notice and opportunity
to be heard-were fully satisfied.” Alford,
2017 WL 2473311, at *2 (quoting Orner v. Shalala, 30
F.3d 1307, 1310 (10th Cir. 1994)). Plaintiff does not dispute
that he received adequate notice or the opportunity to
present his arguments. See United States v. Rogers,
657 Fed.Appx. 735, 738 (10th Cir. 2016) (unpublished)
(finding that Rule 60(b)(4) argument failed where the court
considered party's claims, discussed the claims, and
adequately addressed party's arguments). A judgment is
not void merely because it is or may have been erroneous.
United Student Aid Funds, Inc. v. Espinosa, 559 U.S.
260, 270 (2010); Buck, 281 F.3d at 1344 (“[A]
judgment is not void merely because it is erroneous.”).
A Rule 60(b)(4) motion “is not a substitute for a
timely appeal.” Espinosa, 559 U.S. at 270
has not shown that relief under Rule 60(b)(4) or any other
subsection of Rule 60(b) is warranted. Furthermore,
Plaintiff's request for partial summary judgment is
completely frivolous. This case was dismissed for failure to
state a claim, and defendants were never served because the
case did not survive the Court's screening under 28
U.S.C. § 1915A. Plaintiff's motion is denied and
this case remains closed.
IS THEREFORE ORDERED THAT Plaintiff's Motion for
Reconsideration of Void Judgment and Partial Summary Judgment
(Doc. 13) is denied.