United States District Court, E.D. Virginia, Richmond Division
SAMUEL E. HARRIS, Plaintiff,
UNITED STATES OF AMERICA DEPARTMENT OF VETERANS AFFAIRS, Defendant.
MEMORANDUM OPINION (DENYING RULE 60(B) MOTION WITHOUT
E.HUDSON UNITED STATES DISTRICT JUDGE
E. Harris, a Virginia inmate proceeding pro se and
in forma pauperis, brought this action pursuant to
the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346 & 2671 et seqBy Memorandum
Order entered on October 5, 2016, the Court directed Harris
to show cause, within eleven (11) days of the date of entry
why his Complaint should not be dismissed for any of the
following reasons: (1) for failure to exhaust administrative
remedies pursuant to 28 U.S.C. § 2675(a); (2) as
untimely pursuant to 28 U.S.C. § 2401(b); and (3) for
failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2) & 1915A.
No. 13, at 4.) The Court warned Harris that failure to
respond would result in summary dismissal of the action.
(Id.) Having received no response from Harris, the
Court dismissed this action without prejudice by Memorandum
Opinion and Order entered on November 9, 2016. (ECFNos. 14,
December 15, 2016, the Court received a "Motion
Objecting to a Ruling or Order" from Harris. (ECF No.
18.) Because Harris filed this motion outside of the
twenty-eight day period permitted for motions pursuant to
Federal Rule of Civil Procedure 59, this motion is properly
construed as a motion under Federal Rule of Civil Procedure
60(b) ("Rule 60(b) Motion"). United States
v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003) (citing
Small v. Hunt, 98 F.3d 789, 797 (4th Cir.
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.
Mayfleldv. 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 claim or defense, ' and lack of unfair
prejudice to the opposing party" Coleman v.
Jabe, 633 F.App'x 119, 120 (4th Cir. 2016) (quoting
Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir.
2011)). A party must also demonstrate "exceptional
circumstances." Dowell v. State Farm Fire & Cas.
Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (quoting
Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984)).
After a party satisfies this threshold showing, "he [or
she] then must satisfy one of the six specific sections of
Rule 60(b)." Id. (quoting Werner, 731
F.2d at 207).
Rule 60(b) Motion, Harris contends that on December 1, 2016,
he received a copy of the docket sheet in this matter. (Rule
60(b) Mot. 1.) After reviewing the docket, Harris alleges
that he never received the Court's Memorandum Orders
entered on June 23, 2016 and October 5, 2016, as well as the
Memorandum Opinion and Order dismissing the action entered on
November 9, 2016. (Id. at 2.) Harris objects to the
dismissal of his action based upon his failure to receive his
mail from the Court. Harris, however, has failed to make a
threshold showing of a meritorious claim under the FTC A, as
he must to pursue relief under Rule 60(b). See
Coleman, 633 F.App'x at 120 (quoting
Aikens, 652 F.3d 501). Accordingly, Harris's
Rule 60(b) Motion (ECF No. 18) will be denied without
prejudice. The Clerk will be directed to resend copies of the
Court's June 23, 2016 Memorandum Order, October 5, 2016
Memorandum Order, and November 9, 2016 Memorandum Opinion and
Order to Plaintiff at his current address.
appropriate Order will accompany this Memorandum Opinion.
 That statute provides, in pertinent
[T]he district courts ... shall have exclusive
jurisdiction of civil actions on claims against the United
States, for money damages ... for injury or loss of property,
or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission
28 U.S.C. § 1346(b)(1).
Harris indicates that he has brought
his motion pursuant to Rule 46 of the Federal Rules of Civil