07-4557-pr
Green v. Phillips


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25 th day of March, two thousand ten.

PRESENT:            REENA RAGGI,
                    PETER W. HALL,
                              Circuit Judges,
                    GREGORY W. CARMAN,
                              Judge.*

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SHAWN GREEN,
                                                Plaintiff-Appellant,
                               v.                                                     No. 07-4557-pr

W.E. PHILLIPS, G. GUINEY, W. RUSSETT, T.H.
KIERNAN, L. GOIDEL, F. SARLES, J. TARDIO,
T.G. EAGEN, D. HUTTELL, D. OSSELMAN,
                           Defendants-Appellees,

NURSE DAWN,
                                                Defendant.
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FOR APPELLANT:                                     Shawn Green, pro se, Elmira Correctional Facility,
                                                   Elmira, New York.


           *
        Judge Gregory W. Carman of the United States Court of International Trade, sitting
by designation.
FOR APPELLEES:                      Andrew M. Cuomo, Attorney General of the State of
                                    New York, Barbara D. Underwood, Solicitor General,
                                    Robert C. Weisz, Assistant Solicitor General, New York,
                                    New York.

       Appeal from the United States District Court for the Southern District of New York

(Thomas P. Griesa, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court order entered on September 27, 2007, is AFFIRMED, and

that appellant’s related motion to this court is DENIED.

       Plaintiff Shawn Green appeals pro se from the district court’s denial of his motion for

relief from a judgment dismissing his amended complaint for failure to state a claim. See

Fed. R. Civ. P. 60(b). He also moves for reinstatement of and consolidation with his

previously dismissed appeal in docket number 06-3931-pr.           We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm the district court’s challenged order and to deny

Green’s related motion to this court.

       1.     Motion To Reinstate Prior Appeal

       Green moves to reinstate his prior appeal from the dismissal of his complaint, which

appeal was dismissed on September 5, 2007, because Green failed to pay the docketing fee

or move to proceed in forma pauperis. A “showing of ‘manifest injustice’ [is] normally

required to warrant recall of a mandate.” Bennett v. Mukasey, 525 F.3d 222, 224 (2d Cir.

2008) (quoting Fed. R. App. P. 2 advisory committee’s note). Because Green has not shown

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manifest injustice here, we deny his motion. Accordingly, this appeal brings before us only

the district court’s denial of his Rule 60(b) motion, “not the merits of the underlying

judgment.” Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986).

       2.     Motion for Relief from Judgment

       We review a district court’s denial of a Rule 60(b) motion for abuse of discretion. See

Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998). Green

submits that Rule 60(b) relief was warranted because of “fraud,” Fed. R. Civ. P. 60(b)(3),

because “the judgment is void,” Fed. R. Civ. P. 60(b)(4), and because of “extraordinary

circumstances,” Appellant’s Br. at 11; see also Fed. R. Civ. P. 60(b)(6) (allowing court to

grant motion for “any other reason that justifies relief”). We identify no merit in these

arguments.

              a.     Fraud

       First, Green fails to provide any evidence of fraud by the defendants. See King v.

First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002) (holding that movant seeking

Rule 60(b) relief must establish fraud by clear and convincing evidence). Instead, Green

points only to alleged error by the district court in dismissing his complaint and failing to

consider certain submitted documents. These allegations are insufficient to justify relief

under Rule 60(b)(3). See Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir. 1989) (“[A]

Rule 60(b)(3) motion cannot be granted absent clear and convincing evidence of material

misrepresentations and cannot serve as an attempt to relitigate the merits.”).



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               b.     Void Judgment

       Green’s voidness challenge requires him to show that the district court “lacked

jurisdiction of the subject matter, or of the parties, or . . . acted in a manner inconsistent with

due process of law.” Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 193 (2d Cir.

2006) (internal quotation marks omitted). Green does not contend that the district court

lacked subject matter or personal jurisdiction. As previously noted, he complains that the

district court failed to apply the correct standard and to consider documentary evidence

attached to his summary judgment motion. We are not convinced. Although prisoner

complaints are not subject to a heightened pleading requirement, see Phelps v. Kapnolas, 308

F.3d 180, 187 n.6 (2d Cir. 2002), they must nevertheless plead “plausible” claims to survive

dismissal, Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007); Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009). The

district court, writing before Twombly and Iqbal, effectively explained why Green’s amended

pleadings, even when read liberally, do not state plausible claims. Thus, we identify no due

process denial in the standard applied to dismiss Green’s complaint. Nor can the district

court’s purported failure to review documents filed in support of a summary judgment

motion and nowhere referenced in Green’s amended complaint be viewed as a denial of due

process. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).

Finally, to the extent Green disputes the merits of the district court’s dismissal decision, we

are not persuaded. In any event, “[a] judgment is not void merely because it is erroneous.”



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In re Texlon Corp., 596 F.2d 1092, 1099 (2d Cir. 1979) (alteration in original) (internal

quotation marks omitted); accord 11 Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 2862, at 326 (2d ed. 1995).

              c.      Extraordinary Circumstances

       Although Green contends that he was entitled to relief based on “extraordinary

circumstances,” Appellant’s Br. at 11, he does not specify what these circumstances are. A

liberal reading of his submissions suggests that Green contends he is entitled to relief because

he was allegedly deprived of medical attention and punished in retaliation for a hunger strike.

Green may not, however, obtain relief from judgment by reiterating the same general

allegations contained in his dismissed complaint. See Shrader v. CSX Transp., Inc., 70 F.3d

255, 257 (2d Cir. 1995) (“[A] motion to reconsider should not be granted where the moving

party seeks solely to relitigate an issue already decided.”). Mere disagreement with the

district court’s underlying judgment does not present extraordinary circumstances or extreme

hardship. See Matarese v. LeFevre, 801 F.2d at 106-07 (holding that, while relief is

appropriate in “extraordinary circumstances” or “where the judgment may work an extreme

and undue hardship,” Rule 60(b)(6) “may not be used as a substitute for appeal”).

       Accordingly, we identify no abuse of discretion in the district court’s denial of

Green’s Rule 60(b) motion.




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      We have considered Green’s remaining arguments on appeal and conclude that they

are without merit. Accordingly, we AFFIRM the district court’s September 27, 2007 order,

and we DENY Green’s motion to reinstate his prior appeal.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, Clerk of Court




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