MICHAEL A. TELESCA, District Judge.
On March 19, 2013, Defendants filed a Motion to Dismiss (Dkt #37) Plaintiff's Third Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Court (Skretny, D.J.) issued an Order (Dkt #40) directing Plaintiff to file a response to Defendants' Motion to Dismiss by May 3, 2013, and stating that Plaintiff's failure to file and serve a timely response "may result in this Court granting Defendants' motion as uncontested pursuant to Local Rule 7(a)(2)(A) or dismissing Plaintiff's case for failure to prosecute." Dkt #40. The matter was transferred to the undersigned on August 16, 2013 (Dkt #41).
The due date specified in Judge Skretny's Order passed without Plaintiff filing a responsive pleading or requesting an extension of time in which to file a response. This Court issued a Decision and Order (Dkt #42) granting Defendants' Motion to Dismiss as uncontested pursuant to Local Rule 7(a)(2)(A), and dismissing Plaintiff's Third Amended Complaint in its entirety.
Plaintiff now has filed letter which was docketed as a Motion for Reconsideration (Dkt #47). Plaintiff states that he seeks "reargument" of his case and that this is his "second try to have certain birth rights granted by the Court so while incarcerated" he can "have [his] Native American hairstyle (mullet) [and] also smudged sage/sweetgrass. ..." Dkt #47 at 1. Defendants have not responded to the Motion for Reconsideration. For the reasons discussed below, Plaintiff's Motion for Reconsideration is denied.
The rule under which Plaintiff seeks reconsideration is unclear, but because his motion was not served within 28 days after the entry of the Court's determination of the original motion, the Court will treat the reconsideration motion as filed under Rule 60(b), rather than Rule 59(e), of the Federal Rules of Civil Procedure.
The Second Circuit has explained that Rule 60(b) "should be broadly construed to do `substantial justice,' yet final judgments should not `be lightly reopened.'"
Pursuant to Rule 60(b), "[o]n motion and just terms, a court may relieve a party or its legal representative from a final judgment, order, or proceeding" for any of the following reasons:
FED. R. CIV. P. 60(b). Plaintiff does not specify any of these reasons as a basis for this Court to reconsider its Decision and Order granting Defendants' motion to dismiss.
Assuming Plaintiff had cited one or more of the first three subsections under Rule 60(b), the instant motion fails because it is untimely: "A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." FED. R. CIV. P. 60(c). Here, more than a year elapsed since the entry of the August 27, 2013 order granting dismissal and Plaintiff's February 11, 2015 motion for reconsideration. Therefore, Rule 60(b)(1), (2), and (3) cannot provide a basis for relief because Plaintiff's motion was not filed within the one-year time limit applicable to those subsections.
Rule 60(b)(4) is inapplicable.
Rule 60(b)(6), the catch-all provision, permits reconsideration for "any other reason that justifies relief." FED. R. CIV. P. 60(b)(6). "It is well established, however, that a `proper case' for Rule 60(b) relief is only one of `extraordinary circumstances,' or `extreme hardship.'"
Plaintiff states that DOCCS' employees "always want some kind of proof" of his Native American heritage when he seeks to purchase smudged sage/sweetgrass and to maintain his hair in a traditional Native American hairstyle, and that it "gets to the point of harassment." Dkt #47 at 1. To the extent that Plaintiff is attempting to demonstrate "extraordinary circumstances" or "extreme hardship", his allegations pertain to the substance of his discriminatory treatment claims in his Third Amended Complaint, which the Court dismissed without reaching the merits due to his failure to comply with a Court order directing the filing of opposition papers. Since the Decision and Order that Plaintiff seeks to vacate did not decide the merits of his claim, the Court finds that these allegations arguably are irrelevant to the present motion and, in any event, do not constitute "extraordinary circumstances" or "extreme hardship" as a matter of law.
Plaintiff has not attempted to show that "extraordinary circumstances" or "extreme hardship" prevented him from contesting Defendants' motion to dismiss, and therefore he has not provided the Court with any basis under Rule 60(b)(6) to vacate its order dismissing the Third Amended Complaint pursuant to Local Rule 7(a)(2)(A). Finally, "[t]he "extraordinary circumstances" required for relief under Rule 60(b)(6) must also suggest that the moving party `is faultless in the delay.'"
For the foregoing reasons, Plaintiff's Motion for Reconsideration (Dkt #47) is denied with prejudice.