United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF'S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149]  AND
REOPENING THE CASE
M. KEELEY UNITED STATES DISTRICT JUDGE.
March 20, 2015, the pro se plaintiff, Michael
Anthony Jones ("Jones"), filed a civil rights
complaint against a number of defendants concerning his
medical care at U.S.P. Hazelton (Dkt. No. 1-1) . Jones
brought his initial complaint against the defendants in their
individual capacities pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971) (Dkt. No.
Court referred the matter to the Honorable Robert W. Trumble,
United States Magistrate Judge, for initial screening and a
Report and Recommendation ("R&R"). By order
entered on July 20, 2015, Magistrate Judge Trumble notified
Jones that "a Bivens complaint and a FTCA
complaint are two separate causes of action, " and that,
to the extent Jones was attempting to raise a claim under the
Federal Tort Claims Act, "he must file a form complaint
and [ ]incur a separate filing fee" (Dkt. No. 35 at 1) .
On October 1, 2015, Jones filed an additional complaint in
this same case asserting an FTCA claim against the United
States of America (Dkt. No. 62).
November 17, 2016, Magistrate Judge Trumble issued an
R&R, which concluded that Jones failed to state a valid
Bivens claim and also failed to file a screening
certificate of merit pursuant to West Virginia Code §
55-7B-6(c), a necessary prerequisite to filing his FTCA claim
(Dkt. No. 138). After finding no clear error, the Court
adopted the R&R in its entirety (Dkt. No. 149) and denied
Jones' motion for summary judgment (Dkt. No. 114). It
also granted the defendants' motion to dismiss (Dkt. No.
92), dismissed Jones' Bivens claim with
prejudice, and dismissed his FTCA claim without prejudice
(Dkt. No. 132).
appealed the Court's dismissal of his complaint to the
United States Court of Appeals for the Fourth Circuit (Dkt.
Nos. 156; 164), which on August 1, 2017, dismissed the appeal
for lack of jurisdiction (Dkt. No. 170). Now pending is
Jones' self-styled "Motion for Relief (Fed. R. Civ.
P. 60(b) (1)- (3))" (Dkt. No. 175).
seeks relief pursuant to Federal Rule of Civil Procedure 60
(b), which allows the Court to "relieve a party . . .
from a final judgment, order, or proceeding" for:
(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)(1)-(6). A movant under Rule 60(b) must
"have a meritorious claim or defense and the opposing
party must not be unfairly prejudiced by having the judgment
set aside." Aikens v. Ingram, 652 F.3d 496, 501
(4th Cir. 2011).
60 (b) motion may also be construed as a motion for
reconsideration. "[T]he purpose of a motion for
reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence. . . . Where evidence
is not newly discovered, a party may not submit that evidence
in support of a motion for reconsideration." Harsco
Corp. v. Zlotnicki, 779 F.2d 907, 909 (3d Cir. 1985),
cert, denied, 476 U.S. 1171 (1986). "[A] motion
to reconsider is appropriate where the court has obviously
misapprehended a party's position or the facts or
applicable law, or where the party produces new evidence that
could not have been obtained through the exercise of due
diligence." Prudential Securities, Inc. v.
LaPlant, 151 F.R.D. 678, 679 (D.Kan. 1993). A general
principle applied in the Rule 60 (b) context is that
"disposition of a motion under Fed.R.Civ.P. 60(b) is
within the sound discretion of the district court."
Evans v. United Life & Ace. Ins. Co., 871 F.2d
466, 472 (4th Cir. 1989) (citing Universal Film
Exchanges, Inc. v. Lust, 479 F.2d 573, 576 (4th Cir.
Jones cites generally to subsections (1) through (3) as the
bases on which the Court should grant relief under Rule 60
(b), he fails to explain how any of these provisions relate
to the Court's prior order dismissing his case. Rather,
Jones argues that he is entitled to relief because he
"was not appointed counsel for the purpose of obtaining
the necessary expert health care professional certification
required" to pursue his FTCA claim, and because the
Court "did not take into consideration [his] inability
to make properly researched responses" about that claim,
due to his incarceration at U.S.P. Hazelton. Id. at
2. Jones further argues that the Court improperly dismissed
his claim under the Americans with Disabilities Act
("ADA"), because "the defendant never
responded to [it] and thus conceded the issue in [Jones']
favor." Id. Given the grounds on which Jones
requests relief, the Court construes his Rule 60(b) motion as
a motion for reconsideration.