United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTION FOR A
CERTIFICATE OF APPEALABILITY (DKT. # 7) AND THE MOTION FOR
RELIEF FROM JUDGMENT (DKT. # 8).
GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
Raleem-X (a/k/a Curtis Fuller) filed a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983. On June
9, 2016, this Court dismissed the complaint pursuant to 28
U.S.C. § 1915(g), because plaintiff had four prior civil
rights complaints that were dismissed by federal courts for
being frivolous, malicious, or for failing to state a claim
upon which relief could be granted and plaintiff had been
denied leave to proceed in forma pauperis
at least four times under 28 U.S.C. § 1915(g), the
“three-strikes" rule, based on these prior
dismissals. On August 22, 2017, the Court denied the motion
for rehearing that he had brought pursuant to Fed.R.Civ.P.
has now filed a motion for a certificate of appealability and
a motion for relief from judgment. For the reasons that
follow, the motions are DENIED.
Court will deny plaintiff's motion for a certificate of
appealability as moot. It is unnecessary for plaintiff to
obtain a certificate of appealability before appealing the
dismissal of a civil rights action brought pursuant to 42
U.S.C. § 1983. 28 U.S.C. § 2253(c)(1)(A) and
F.R.A.P. 22(b) state that an appeal from the district
court's denial of a writ of habeas corpus may not be
taken unless a certificate of appealability (COA) is issued
either by a circuit court or district court judge. Because
plaintiff's case was filed as a civil rights action under
42 U.S.C. § 1983, and not as a petition for writ of
habeas corpus, plaintiff does not need to obtain a
certificate of appealability prior to appealing this
Court's decision or decisions. See Johnson v.
CCA-Northeast Ohio Correctional Center Warden, 21 F.
App=x. 330, 332 (6th Cir. 2001).
also filed a Rule 60(b) motion for relief from judgment,
claiming that this Court erred in dismissing his complaint
pursuant to 28 U.S.C. § 1915(g).
Court rejects the 60(b) motion because it is untimely. Under
Fed.R.Civ.P. 60(b), a motion for relief from judgment can be
granted for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or,
(6) any other reason justifying relief from the operation of
claims in his Rule 60(b) motion that this Court made a
mistake in determining that one of his prior civil rights
cases should count as a “strike, " for purposes of
28 U.S.C. § 1915(g), because the case had been dismissed
in part for failure to exhaust administrative remedies and
not for being frivolous, malicious, or failing to state a
claim upon which relief could be granted. Plaintiff's
claim clearly falls within subsection (1) of Rule 60(b),
based on this Court committing a mistake in dismissing his
case pursuant to 28 U.S.C. § 1915(g).
of circumstances, no court can consider a motion brought
under Rule 60(b)(1), (2), or (3) a year after
judgment.” In re G.A.D.,Inc., 340
F.3d 331, 334 (6th Cir. 2003)(citing Fed.R. Civ. P. 60(b);
McDowell v. Dynamics Corp. of America, 931 F.2d 380,
384 (6th Cir. 1991)). This Court summarily dismissed the
complaint on June 9, 2016. Petitioner's motion for relief
from judgment was signed and dated January 31, 2018 and filed
with this Court on February 8, 2018. Because plaintiff's
Rule 60(b) motion for ...