Diaz v. Biben
- Colleen McMahon
- 1:20-cv-04357
- U.S. District Court · Southern District of New York
- 4
In Diaz v. Biben, Judge McMahon denied Diaz’s requests to undo an earlier dismissal and barred further filings except appeal papers.
Gilberto Diaz’s requests to obtain relief from the earlier dismissal were denied. The order also limited further filings by Diaz in this docket and denied permission to appeal without paying filing fees. Ellen Biben was the named defendant.
What happened
Gilberto Diaz, who was incarcerated and represented himself, asked the court to reconsider its earlier dismissal of his case against Ellen Biben. The earlier dismissal was without prejudice because 28 U.S.C. § 1915(g) barred Diaz from filing federal civil actions without paying the filing fee as a prisoner.
The court treated Diaz’s filings as requests under Rules 59(e) and 60(b) and Local Civil Rule 6.3. It found that he had not shown that the court overlooked controlling law or facts, any applicable reason for relief under Rule 60(b)(1) through (5), or extraordinary circumstances required under Rule 60(b)(6).
Judge Colleen McMahon denied all of Diaz’s requests. She directed the Clerk to accept no further filings from Diaz in this case except papers addressed to the Court of Appeals for the Second Circuit, and denied him permission to appeal without paying fees because the appeal would not be taken in good faith.
The detailed version
- Diaz v. Biben · No. 1:20-cv-04357
- Colleen McMahon
- Aug. 20, 2020
Background
The court had previously dismissed Gilberto Diaz’s self-represented action without prejudice. The stated reason was that, under 28 U.S.C. § 1915(g), Diaz was barred from filing federal civil actions without paying the filing fee as a prisoner. Diaz later submitted a “Petition for a Writ of Error” and a request for a “Certificate of Division of Opinion.” The court treated those submissions as motions seeking relief from the earlier order and judgment under Federal Rules of Civil Procedure 59(e) and 60(b), and Local Civil Rule 6.3.
Rule 59(e) and Local Civil Rule 6.3
A Rule 59(e) motion asks the court to alter or amend a judgment. A motion under Local Civil Rule 6.3 asks the court to reconsider its decision. The court explained that these motions require the moving party to show that the court overlooked controlling legal decisions or factual matters previously presented. The court found that Diaz had not made that showing and denied relief under Rule 59(e) and Local Civil Rule 6.3.
Rule 60(b)
Rule 60(b) permits relief from an order or judgment for specified reasons, including mistake, newly discovered evidence, fraud or misconduct, a void judgment, satisfaction or reversal of the judgment, or another reason justifying relief. The court found that Diaz had not alleged facts showing that any of the first five grounds applied and denied relief under Rule 60(b)(1) through (5).
For Rule 60(b)(6), which covers other reasons justifying relief, the court said Diaz had to show both that he filed within a reasonable time and that extraordinary circumstances warranted relief. The court found that Diaz had not alleged facts demonstrating extraordinary circumstances and denied relief under Rule 60(b)(6).
Disposition
Judge Colleen McMahon denied Diaz’s motions under Rules 59(e) and 60(b) and Local Civil Rule 6.3. The Clerk was directed to mail Diaz a copy of the order and record service on the docket. The court also directed the Clerk to accept no further submissions from Diaz under this docket number, except papers directed to the United States Court of Appeals for the Second Circuit. Finally, the court certified that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.