United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion to
Set Aside Opinion and Order (Doc. 40) filed on December 8,
2017. Plaintiff requests the Court to “recind”
[sic] its Opinion and Order issued on November 15, 2017 (Doc.
38), because the Court “overlooked/misapprehended and
perhaps misconstrued” Plaintiff's emergency motion
as a “preliminary injunction” instead of a
does not specify upon which Rule he relies in bringing his
Motion. Consequently, the Court construes Plaintiff's
Motion a seeking relief pursuant to Federal Rule of Civil
Procedure 60(b) which states:
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.
Fed. R. Civ. P. 60(b) (2017). The purpose of Rule 60(b) is to
define the specific circumstances under which a party may
obtain relief from a final judgment or order. Motions under
this rule are directed to the sound discretion of the court.
Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006);
Mahone v. Ray, 326 F.3d 1176, 1178, n.1 (11th Cir.
2003); Weiss v. Warden, 703 F. App'x 789, 791
(11th Cir. July 24, 2017). Rule 60(b)(6), known as the
catch-all provision, requires a party to “demonstrate
that the circumstances are sufficiently extraordinary to
warrant relief.” Aldana v. DelMonte Fresh
Produce N.A., Inc., 741 F.3d 1349, 1355 (11th Cir.
2014) (internal quotations and citations omitted). Thus, to
be entitled to relief under this provision, Plaintiff must
show that “absent such relief, an extreme and
unexpected hardship will result.” Crapp v. City of
Miami Beach, 242 F.3d 1017, 1020, (11th Cir.
2001) (internal quotations and citations omitted).
considering Plaintiff's Motion for an Emergency Hearing
(Doc. 24), the Court directed the Secretary of the Florida
Department of Corrections to file an expedited response to
the Motion (Doc. 26). Because the Secretary had notice of and
an opportunity to respond to Plaintiff's Motion, the
Court properly construed Plaintiff's Motion as seeking
relief for a preliminary injunction under Fed.R.Civ.P. 65(a)
instead of relief for a temporary restraining order under
Fed.R.Civ.P. 65(b). Before entering its Opinion and Order, the
Court considered Plaintiff's Amended Complaint and
Appendix (Docs. 21-22), the Secretary's Response to
Plaintiff's Motion and Exhibits A-D (Doc. 33), and
Plaintiff's Reply to the Secretary's Response and
Exhibit A (Doc. 37). Based upon the record before it, the
Court found Plaintiff could not show a substantial likelihood
that he would prevail on the merits nor that he would suffer
irreparable harm and set forth the factual predicates it
relied upon in its November 15, 2017 Order (Doc. 38).
instant Motion challenges the Court's consideration of
Plaintiff's Motion for Emergency Hearings under Rule
65(a) instead of Rule 65(b), and otherwise merely reiterates
arguments he already made in his previous filings.
Consequently, the Court finds Plaintiff has not articulated a
factual basis under one of the grounds for relief enumerated
in clauses (b)(1) through (b)(5) set forth above, and has not
shown that he is otherwise entitled to the exceptional relief
in clause (b)(6).
it is now
Motion to Set Aside Opinion and Order (Doc. 40), construed as
a motion pursuant to Fed.R.Civ.P. 60(b), is
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