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Marshall v. Payne

United States District Court, E.D. Virginia, Richmond Division

June 9, 2015

KALVIN MARSHALL, Plaintiff,
v.
ROBERT E. PAYNE, et al., Defendants.

MEMORANDUM OPINION

JAMES R. SPENCER, Senior District Judge.

By Memorandum Opinion and Order entered April 3, 2015, the Court dismissed a Bivens action[1] filed by Kalvin Marshall. On May 18, 2015, the Court received a letter motion from Marshall in which he requests his "time frame [to] be restored" so he can file a Federal Rule of Civil Procedure 59(e) Motion. ("Motion for Extension of Time, " ECF No. 47.) Marshall explains that he only received the Court's April 3, 2015 Memorandum Opinion and Order dismissing the case on May 8, 2015. (Id. at 1.) A Rule 59(e) Motion must be filed "no later than 28 days after the entry of the judgment." Fed.R.Civ.P. 59(e). The Court lacksthe authority to extend the time period in which to file a Rule 59(e) Motion. See Fed.R.Civ.P. 6(b)(2). Accordingly, Marshall's Motion for Extensionof Time (ECF No. 47) will be DENIED.

On May 26, 2015, the Court received Marshall's timely Notice ofAppeal (ECF No. 48) and a Federal Rule of Civil Procedure 59(e) Motion (ECF No. 49). Because Marshall filed this motion outside of the twenty-eight day period permitted for Rule 59(e) motions, this motion is properly construed as a motion under Federal Rule of Civil Procedure 60(b) ("Rule 60(b) Motion"). See United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003) (citing Small v. Hunt, 98 F.3d 789, 797 (4th Cir. 1996)).

Federal Rule of Civil Procedure 60(b) allows a court to "relieve a party... from a final judgment, order, or proceeding." Fed.R.Civ.P. 60(b). It is an extraordinary remedy requiring a showing of exceptional circumstances. Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (citing Ackermann v. United States, 340 U.S. 193, 202 (1950)). The party seeking relief under Rule 60(b) must make a threshold showing of "timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and exceptional circumstances.'" Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4thCir.1993) (quoting Werner v. Carbo, 731 F.2d204, 207 (4th Cir. 1984)). Aftera party satisfiesthis threshold showing, "he [or she] then must satisfy one of the six specific sections of Rule 60(b)." Id. (citing Werner, 131 F.2d at 207).

Marshall first argues thatthe Court erred by failing to identify under which section of 28 U.S.C. § 1915(e)(2) it dismissed his claims formonetary damages. (Rule 60(b) Mot. 4-5.) Marshall contends that the Court should have identified that its dismissal was pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)[2] because the Court concluded that Defendants were entitled to judicial immunity for their actions taken inMarshall's criminal proceedings. Marshall then repeats the Court's conclusions inthe Memorandum Opinion and vaguely suggests that they are incorrect for reasons previously statedin his Complaint. Marshall fails to demonstrate any exceptional circumstances thatwould warrant vacating the dismissal of his Bivens action. Thus, he fails to make the threshold showing required to bring a Rule 60(b) Motion. Accordingly, Marshall's Rule 60(b) Motion (ECF No. 49) will be DENIED.

An appropriate Order shall issue.


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