United States District Court, E.D. Kentucky, Southern Division, London
JAFARI T. MOORE PLAINTIFF
UNITED STATES OF AMERICA, et al. DEFENDANTS
L. Bunning United States District Judge.
matter is before the Court upon the Plaintiff's pro
se Complaint, which the Court construes as a Motion for
Relief from Judgment pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure. (Doc. # 92). The time for
Defendants to file a response having expired, the matter is
now ripe for the Court's review. For the reasons stated
herein, Plaintiff's construed Motion for Relief from
Judgment (Doc. # 92) is hereby denied.
FACTUAL AND PROCEDURAL BACKGROUND
factual and procedural history of this matter has already
been set forth on the record in detail by the Sixth Circuit,
incorporated herein. See Moore v. U.S. Dep't of
Agric., No. 17-5363, 2018 WL 1612299, at *2 (6th Cir.
Jan. 31, 2018). In short, Plaintiff injured his left pinky
finger, ultimately resulting in its amputation, while housed
in the custody of the Bureau of Prisons. Plaintiff brought a
FTCA claim for medical malpractice against the United States,
as well as a deliberate indifference claim against federal
corrections personnel under Bivens. See
(Docs. # 1 and 24) (bringing claims pursuant to 28 U.S.C.
§§ 1346(b), 2671-80; Bivens v. Six Unknown
Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388 (1971)). On March 15, 2017, this Court granted the
Defendants' Motion for Summary Judgment, and dismissed
Plaintiff's claims with prejudice. (Doc. # 83). On
January 31, 2018, the Sixth Circuit affirmed this Court's
judgment on appeal. (Doc. # 90 at 7).
16, 2018, Plaintiff, proceeding pro se, filed the
instant Motion for Relief from Judgment (Doc. # 92),
essentially seeking to reopen this action on the grounds that
it was dismissed due to the legal malpractice of his
attorney, David J. Bernstein. (Doc. # 92 at 3). Specifically,
Plaintiff asserts that “attorney David Jay Bernstein
provided professional negl[i]gence by failing to at the onset
of this case provide a[n] adequate affidavit of merit”
and likewise, that “Counsel did not provide proper
representation of the case overall.” Plaintiff asserts
that “these two issues [are] the direct caus[e] of
petitioner losing his suit.” Id. at 3-4.
Citing to the “various provisions” (Doc. # 92 at
8) of Rule 60(b) of the Federal Rules of Civil Procedure,
Plaintiff requests that the Court reopen this civil action.
(Doc. # 92 at 8-9). Alternatively, Plaintiff seeks to bring a
suit against his counsel for legal malpractice. See
generally (Doc. # 92).
60(b) allows district courts discretion to grant relief from
a final judgment or order due to: (1) mistake; (2) newly
discovered evidence; (3) fraud; (4) a void judgment; (5) a
satisfied judgment; or (6) any other reason that justifies
relief. Fed.R.Civ.P. 60(b). Although courts have considerable
discretion in granting relief from a final judgment or order
pursuant to Rule 60(b), that power is “circumscribed by
public policy favoring finality of judgments and termination
of litigation.” Blue Diamond Coal Co. v. Trustees
of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th
Cir. 2001). Therefore, “relief under Rule 60(b) is . .
. extraordinary. Zucker v. City of Farmington Hills,
643 Fed.Appx. 555, 562 (6th Cir. 2016). “[A] party
seeking relief under Rule 60(b) bears the burden of
establishing the grounds for such relief by clear and
convincing evidence.” Info-Hold, Inc. v. Sound
Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008)
construed, Plaintiff's Motion for Relief from Judgment
(Doc. # 92) based upon the alleged malpractice of his counsel
appears to be predicated on either mistake under Rule
60(b)(1), or manifest injustice under Rule
60(b)(6). The Motion makes no mention of newly
discovered evidence under 60(b)(2), fraud or misconduct by an
opposing party under 60(b)(3). Nor does the Motion make any
mention of a void or satisfied judgment under 60(b)(4)-(5).
Rule 60(b)(1), a court can vacate a final judgment or order
because of “mistake, inadvertence, surprise, or
excusable neglect.” Fed.R.Civ.P. 60(b)(1). Relief under
Rule 60(b)(6), although it may read like a
“catch-all” provision, is afforded “only in
exceptional or extraordinary circumstances.” Blue
Diamond Coal Co., 249 F.3d at 524 (citing Olle v.
Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.
1990)). “[B]ecause ‘almost every conceivable
ground for relief is covered' under the [five] other
subsections of Rule 60(b) . . . courts must apply Rule
60(b)(6) relief only in ‘unusual and extreme situations
where principles of equity mandate
relief.'” Id. (quoting Olle, 910
F.2d at 365) (emphasis in original).
taking Plaintiff's assertions as true that this case was
dismissed due to the legal malpractice of Attorney Bernstein,
Rule 60(b) relief is nonetheless unwarranted. The purported
legal malpractice of counsel does not constitute the
requisite “mistake, inadvertence, surprise, or
excusable neglect, ” or “exceptional or
extraordinary circumstances” to warrant either 60(b)(1)
or 60(b)(6) relief. See McCurry ex rel. Turner v.
Adventist Health Sys., 298 F.3d 586, 593 (6th Cir. 2002)
(rejecting 60(b)(1) and 60(b)(6) relief based upon
“erroneous advice” of the plaintiff's former
attorney”); FHC Equities, LLC v. MBL Life Assurance
Corp., 188 F.3d 678, 683-87 (6th Cir. 1999) (recognizing
that neither strategic miscalculation nor counsel's
misinterpretation of the law warrants relief from a
judgment); Anthony v. Gilman, No. 4:03-cv-87, 2006
WL 3290141, at *2 (W.D. Mich. Nov. 13, 2006) (rejecting
prisoner's argument that he was entitled to 60(b) relief
in § 1983 action based upon, inter alia,
allegations that his counsel was ineffective). Accord
Aponte v. City of New York Dep't of Corr., 377
Fed.Appx. 99, 100 (2d Cir. 2010) (“The district court
did not abuse its discretion by denying Appellant's Rule
60(b) motion for reconsideration because it was premised on
the legal malpractice of counsel and not the merits of the
underlying litigation.”); Rose v. Bonnet, 402
Fed.Appx. 226, 228 (9th Cir. 2010) (finding that
counsel's calendaring mistakes and ignorance of the law
in failing to file a timely opposition to defendants'
summary judgment motion did not establish valid grounds for
relief under 60(b)(1)) (citing Casey v.
Albertson's, 362 F.3d 1254, 1260 (9th Cir. 2004)).
likewise improper for the Court to reopen this matter so that
Plaintiff can add a legal malpractice claim. See
Aponte, 377 Fed.Appx. at 100. Plaintiff must initiate a
new action should he wish to pursue a legal malpractice
action against his counsel, as the Court declines to exercise
its discretion to reopen this case.
for the reasons stated herein, IT IS ORDERED
that Plaintiffs construed Motion for Relief from Judgment
(Doc. # 92) is DENIED.
IS FURTHER ORDERED that Plaintiff is
PROHIBITED FROM FILING any additional
motions or pleadings in this action, ...