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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MARS L. GORE,

Plaintiff,

vs. Case No. 4:96cv149-WS/WCS

HARRY K. SINGLETARY, JR., 

et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, a pro se inmate, has filed a motion for relief from final judgment under

FED. R. CIV. P. 60(b)(5) or (6). Doc. 9. Plaintiff's motion was filed on August 19, 2005,

doc. 9, and this case was closed in June of 1996. Docs. 7, 8. The order dismissed the

complaint as frivolous, but the complaint itself cannot be reviewed because the file was

archived in 1999.

Rule 60(b) provides that upon "motion and upon such terms as are just, the court

may relieve a party . . . from a final judgment, order, or proceeding" and then sets forth

various situations under which a party may be relieved. FED. R. CIV. P. (6)(b). Plaintiff

specifically references the reasons provided in (5) and (6) to justify relief from judgment

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 He is further advised that he is subject to the "three strikes" limitation of §

1915(g), and should give careful consideration to the merits of his claims. If Plaintiff has

more than three cases dismissed for reasons which could as "strikes," he will not be

entitled to in forma pauperis status. 28 U.S.C. § 1916(g). This case was dismissed as

frivolous which counts as a strike under 28 U.S.C. § 1915(e)(2). 

Case No. 4:96cv149-WS/WCS

in this case. Those reasons are: "(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 the judgment." 

FED. R. CIV. P. 60(b)(5),(6). The rule also provides that such a "motion shall be made

within a reasonable time . . . ." FED. R. CIV. P. 60(b). 

In this case, Plaintiff's motion for relief from judgment has been filed nine years

after the original case was dismissed. That is simply too long and Plaintiff's motion

should be denied. Furthermore, there is nothing within the body of Plaintiff's motion to

show that any claim he is attempting to revive has been exhausted through the prison's

grievance process. Until that happens, any claims Plaintiff attempts to bring would be

subject to immediate dismissal. 28 U.S.C. § 1915(e).

Denial of Plaintiff's motion does not automatically prohibit Plaintiff from litigating

the same sort of claims raised in the original case should he desire to do so and should

such claims be new, based upon new conditions and new evidence. Plaintiff may file a

new civil rights action presenting the factual allegations, the basis for his claim, and his

request for relief. Plaintiff is reminded that he must demonstrate exhaustion of

administrative remedies prior to filing any new action. Plaintiff is further advised that he

must either submit a new in forma pauperis application or pay the full amount of the

court's filing fee at the time he submits another complaint.1

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Case No. 4:96cv149-WS/WCS

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's motion

for relief from judgment under Rule 60(b), doc. 9, be DENIED.

IN CHAMBERS at Tallahassee, Florida, on September 21, 2005.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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