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Tom Barker v. A. Simmons

November 22, 2011




This matter comes before the Court upon Plaintiff's "Motion to Reinstate All DCF, GEO and Liberty Defendants Who Were Dismissed Without Prejudice" (Doc. #58, Motion), filed September 8, 2011. Plaintiff submits in support of his Motion numerous exhibits. See List of Exhibits (Doc. #59, Pl. Exhs. A-V). Plaintiff, who is civilly confined at the Florida Civil Commitment Center ("FCCC"), asks the Court to reinstate the Defendants who were dismissed without prejudice pursuant to the Court's July 27, 2011 Order (Doc. #56). Plaintiff does not identify the procedural grounds upon which he files the instant Motion. Nonetheless, because the Motion was filed in excess of the thirty-day limitation set forth in Federal Rule of Civil Procedure 59,*fn1 the Court construes the Motion as brought under Federal Rule of Civil Procedure 60(b).


Rule 60(b), Fed. R. Civ. P., permits a litigant to move for relief from a final order for a number of reasons. In particular, Rule 60(b)(1) permits the court to grant relief on "just terms" due to:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence could not have been discovered . . .; (3) fraud . . . misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged . . .reversed or vacated; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Relief under Rule 60(b)(6) "is an extraordinary remedy which may be invoked only upon a showing of exceptional circumstances." GJR Invs., Inc. V. Cnty. Of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)(citation omitted). Such a showing requires the party to demonstrate that "absent such relief, an 'extreme' and 'unexpected' hardship will result." Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984) (citation and quotation omitted). Even if the circumstances are "sufficiently extraordinary to warrant relief . . . whether to grant the requested relief is a matter for the district court's discretion." Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006)(quotation and alteration omitted); see also United States v. Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1318 (11th Cir. 1997).


After liberally construing Plaintiff's pro se complaint, the Court granted the respective motions to dismiss filed on behalf of Defendants Liberty and The United States Postal Service, denied the motion to dismiss filed on behalf of the GEO Group, Inc, George Santana, Paul Pye and A. Simmons, but dismissed Defendants the GEO Group, Paul Pye, and the Secretary of The Florida Department of Children and Families pursuant to 28 U.S.C. § 1915. Further, the Court directed Defendant Simmons to file an answer to Plaintiff's Complaint. See generally July 27, 2011 Order.

Plaintiff makes the following objections to the Court's July 27, 2011 Order.

1. Statute of Limitations

Plaintiff argues that the Court improperly deemed the emails attached to Plaintiff's response in opposition to Liberty's motion to dismiss as "irrelevant." Motion at 1. Plaintiff argues in great detail why he considers the emails relevant and contends that, although dated between October 2005 and November 2005, the emails are relevant to the instant action because under the mailbox rule, Plaintiff's Complaint was filed November 30, 2009, instead of on December 7, 2009, the date the Complaint was received and docketed by the Court. Id. at 1-3.

The relevancy of the subject emails, or the relevancy of any documents submitted by Plaintiff as exhibits to his response in opposition to Liberty's motion or to his instant Motion, is a nonissue. The Court expressly pointed out that the subject emails submitted by Plaintiff, as well as his Affidavit, were not considered by the Court in ruling on the pending motions to dismiss because the Court "limits its consideration to the pleadings and exhibits attached thereto. . . " in ruling on a Rule 12(b)(6) motion. July 27, 2011 Order at 2, n.2 (citing Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1352 n. 7 (11th Cir. 2006)). Consequently, the Court finds no basis to reconsider its July 27, 2011 Order on this ground.

2. First Amendment/Access to Court Claim

The Court found that Plaintiff's First Amendment access to court claim failed as a matter of law because the Complaint "contains no allegations that the failure to provide notary services, the delay in providing Plaintiff with a copy of his FCCC resident account, or any interference with Plaintiff's legal mail caused Plaintiff harm or prejudiced Plaintiff in a criminal appeal, post-conviction matter, or in a § 1983 action." July 27, 2011 Order at 13 (citing Lewis v. Casey, 518 U.S. 343 (1996)). Plaintiff submits that the Court erred in dismissing his First Amendment Access to Court claim because "he had at least one § 1983 Complaint dismissed . . . because of the [sic] failing to provide a copy of his account statement . . . ." Motion at 3. Plaintiff does not ...

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