14-230
Porter v. Sauve

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of July, two thousand fifteen.

PRESENT:          JOSÉ A. CABRANES,
                  DEBRA ANN LIVINGSTON,
                  CHRISTOPHER F. DRONEY,
                               Circuit Judges.


LARRY PORTER,

                  Plaintiff-Appellant,

                           v.
                                                              No. 14-230
SHEILA SAUVE, CHERIE FAIRCHILD, CANDY
ATKINSON, NANCY SMITH, AMBER LASHWAY,
ERIC FACTEAU, JEREMY MCGAW, TREVOR
DUNNING, JAMES BARSE, JAMES SORRELL, RICHARD
RAKOCE, STEVE SALLS, THOMAS QUINN, MICHAEL
SHEAHAN, STEVEN BULLIS, JOSEPH BELLNIER,
DAVID ROCK, LESTER WRIGHT, CARL
KOENIGSMANN, NORMAN BEZIO, VERNON FONDA,
DONALD SELSKY, BRIAN FISCHER,

                  Defendants-Appellees.

                                                 ___

FOR PLAINTIFF-APPELLANT:                               Larry Porter, pro se, Comstock, NY.

FOR DEFENDANTS-APPELLEES:                              No appearance.
       Appeal from an order of the United States District Court for the Northern District of New
York (Mae A. D’Agostino, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.

         Appellant Larry Porter, proceeding pro se, appeals the district court’s order denying without
prejudice his motion to “reopen” the court’s dismissal of his underlying action for his failure to pay
the filing fee, which the district court construed as a motion for relief from the final judgment
pursuant to Fed. R. Civ. P. 60(b). We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

         We have jurisdiction to review only the denial of the Rule 60(b) motion and not the
underlying final judgment dismissing the action for failure to pay the filing fee. See “R” Best Produce,
Inc. v. DiSapio, 540 F.3d 115, 121 n.5 (2d Cir. 2008). We review that denial for abuse of discretion.
See Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). A court abuses its discretion when its decision
(1) “rests on an error of law or a clearly erroneous factual finding;” or (2) “cannot be found within
the range of permissible decisions.” Johnson ex rel. United States v. Univ. of Rochester Med. Ctr., 642 F.3d
121, 125 (2d Cir. 2011).

        Here, the district court’s denial of the motion to reopen was not an abuse of discretion.
Porter argues here, as he did before the district court, that ongoing Supreme Court proceedings may
affect his entitlement to in forma pauperis (“IFP”) status, and further alleges that the Supreme Court
has improperly refused to accept his submissions. The district court reasonably determined that this
argument implicates Rule 60(b)(1), which allows relief from the final judgment on the basis of a
“mistake.” The argument is, however, contradicted by the factual record. At the time the district
court denied Porter’s motion, the Supreme Court’s public docket showed no subsequent filings after
its denial of Porter’s petition for a writ of certiorari, and this remains true. See Porter v. Sauve, No. 12-
6804. Thus, the district court did not abuse its discretion in denying Porter’s motion: Porter had
neither paid the filing fee nor shown that any proceedings were pending in the Supreme Court that
might affect the district court’s order denying him IFP status.

         Though outside the scope of this appeal, we parenthetically note that, by later paying the
requisite filing fee, Porter has since cured the defect for which the district court dismissed his
underlying complaint. As that dismissal was without prejudice, Porter may seek recourse before the
district court.




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       We have considered Porter’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the order of the district court.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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