Banks v. Braun
- Colleen McMahon
- 1:19-cv-06591
- U.S. District Court · Southern District of New York
- 5
In Banks v. Braun, Judge McMahon denied Frederick Banks’s motion to reconsider the dismissal of his action under the prisoner-filing restriction.
Frederick Banks’s request to reopen or change the earlier dismissal was denied. The court also denied permission to appeal without paying the filing fee. The opinion states that the earlier dismissal was without prejudice and that Banks could file a new case by paying the filing fee or seeking permission to proceed without paying it as a nonprisoner.
What happened
Frederick Banks, who was incarcerated and represented himself, asked the court to reconsider its earlier dismissal of his action. The earlier dismissal was based on a rule barring him from filing a civil action without paying the filing fee as a prisoner.
The court treated his filing as a request to alter or amend the judgment and as a request for relief from the order. It concluded that Banks had not shown that the court overlooked controlling law or facts, or that any recognized ground for relief applied. The court also determined that it had authority to decide the motion despite Banks’s notice of appeal.
In Banks v. Braun, Judge Colleen McMahon denied the motion for reconsideration. The court also denied Banks permission to appeal without paying the filing fee, finding that an appeal would not be taken in good faith.
The detailed version
- Banks v. Braun · No. 1:19-cv-06591
- Colleen McMahon
- Nov. 15, 2019
Background
Frederick Banks, who was incarcerated, filed this action without a lawyer. On July 23, 2019, the court dismissed the action because 28 U.S.C. § 1915(g) barred Banks from filing a civil action without paying the filing fee as a prisoner. The court dismissed the action without prejudice and stated that Banks could file a new case by paying the filing fee or by seeking permission to proceed without paying the fee as a nonprisoner.
On August 8, 2019, Banks filed a motion for reconsideration and a notice of appeal. The court liberally construed the filing as a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment, a motion under Local Civil Rule 6.3 for reconsideration, and alternatively a motion under Rule 60(b) for relief from a judgment or order.
Jurisdiction
Because Banks had filed a notice of appeal, the court first addressed whether it could decide the motion. The court concluded that it had jurisdiction because Banks filed the Rule 60(b) motion within 28 days after judgment and filed the notice of appeal before the court decided the motion. Under the appellate rules, the notice of appeal did not become effective until the district court ruled on the motion.
Court’s Analysis
For the Rule 59(e) and Local Civil Rule 6.3 motions, Banks had to show that the court overlooked controlling law or factual matters previously presented. The court concluded that he had not made that showing, so it denied those motions.
The court also considered relief under Rule 60(b). It concluded that Banks had not alleged facts showing that any of the grounds in Rule 60(b)(1) through (5)—including mistake, newly discovered evidence, misconduct, a void judgment, or satisfaction of the judgment—applied. The court denied relief under those provisions.
The court separately denied relief under Rule 60(b)(6), which allows relief for other reasons in exceptional circumstances. It found that Banks had not alleged facts demonstrating the extraordinary circumstances required for relief.
Disposition
The court denied Banks’s motion for reconsideration. It directed the Clerk of Court to mail him a copy of the order and record service on the docket. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fee.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.