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Levesque v. Does

United States District Court, D. Vermont

December 17, 2015



Christina Reiss, Chief Judge

This matter is before the court on Plaintiff Andre Levesque's motion to reopen case filed on October 5, 2015 (Doc. 5). On January 27, 2015, Plaintiff filed a motion to proceed in forma pauperis ("IFP") (Doc. 1), as well as a proposed Complaint, alleging, among other things, violations of his civil rights arising out of his prosecution in a criminal matter pending in this court before the Honorable William K. Sessions III.

On March 5, 2015, Magistrate Judge John M. Conroy issued a Report and Recommendation ("R & R") recommending that Plaintiffs motion for leave to proceed IFP be denied for two reasons. First, Plaintiff did not submit a certified copy of the account statement of his prison trust account, as required by 28 U.S.C. § 1915(a)(2). Second, the Magistrate Judge found that the "three strikes" rule set forth in 28 U.S.C. § 1915(g) applies to Plaintiff. The three strikes rule prohibits the court from permitting an incarcerated plaintiff who has brought three or more previous actions that have been dismissed to proceed IFP. Because it was unclear from the allegations of Plaintiff s proposed Complaint whether there was a risk of imminent physical injury, the Magistrate Judge concluded that Plaintiff was not eligible for the "imminent danger" exception to § 1915(g).

The deadline to object to the R & R was March 23, 2015. No objections were filed. The court thereafter issued an Opinion and Order adopting the Magistrate Judge's R & R on March 26, 2015. Plaintiff now seeks to reopen the case so that he may seek reconsideration, interpose objections to the R & R, and request that Magistrate Judge Conroy recuse himself. Plaintiff is self-represented. Defendants have not filed a response, nor is it clear that they have been served. For the reasons set forth below, Plaintiffs motion to reopen case is DENIED.

I. Factual Background.

Plaintiff is charged in docket No. 2:14-cr-00062 with stalking in violation of 18 U.S.C. § 2261A(2), and was committed to the custody of the Federal Bureau of Prisons for an evaluation of his competency to stand trial pursuant to 18 U.S.C. § 4241(a). On August 4, 2014, Judge Sessions committed Plaintiff to the custody of the United States Attorney General pursuant to 18 U.S.C. § 4241(d) for additional observation and treatment upon a finding that Plaintiff was not competent to stand trial. On June 1, 2015, Judge Sessions found that Plaintiff was competent to stand trial, and Plaintiff entered a plea of guilty. The court deferred acceptance of the plea pending a psychological examination of Plaintiff.

In his proposed Complaint, Plaintiff alleges that Assistant United States Attorney ("AUSA") Eugenia A.P. Cowles and unnamed Department of Justice ("DOJ") and Federal Bureau of Investigation ("FBI") officials improperly harassed and attempted to coerce him by prosecuting him in docket No. 2:14-cr-00062. He alleges that he is "being prosecuted for calling the police station" and for calling "a mental health worker who participated in trying to coerce and intimidate" him. (Doc. 1-2 at 2, ¶ 6.) He claims that the competency evaluation was "performed during 460 hours of continuous intense bright light[, ]" and that a person "tried to shove a stick in my [rectum, ]" causing irreparable harm, post-traumatic stress, and pain and suffering. Id. at 2, ¶ 6; 3, ¶ 8.

Plaintiff claims that he did not have the opportunity to object to the R & R until September 2015 because he has been continuously transferred between different Bureau of Prisons facilities, denied access to his legal papers during transport, and unable to use provided computer services to type and print material. He indicates that he has had difficulty formulating his objections which are "on the same file as the lawsuit against the [Bailiff] and Judge Conroy[.]" (Doc. 5 at 3.) Plaintiff also claims that the U.S. Marshals Service denied him access to his legal paperwork while he was being transported. Because of the "restrictions and stresses[] of prolonged] confinement" and the "random allowed time" for the use of a computer to type and print material, Plaintiff asks the court to "ignore" any delay and reopen the case. (Doc. 5 at 1.)

If permitted to file an untimely objection, Plaintiff seeks to object to the R & R on the grounds that AUSA Cowles "did in fact [maliciously] with callous deliberate indifference violate my constitutional rights when she abused the competency clause[.]" Id. at 2. He also challenges the conclusion that DO J has immunity from prosecution because "it is well established that they can be held accountable for [malicious] procedural errors, knowingly with deliberate indifference, such as in this case[]" Id. at 1. Finally, Plaintiff asks Magistrate Judge Conroy to recuse himself, alleging that the Magistrate Judge asked him to swear to "God the one true Nazi" in docket No. 2:14-cr-00062. Id. at 2.

II. Conclusions of Law and Analysis.

A. Standard of Review.

Filings by self-represented parties are "to be liberally construed, and a [self-represented] complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). The court must "liberally construe pleadings and briefs submitted by [self-represented] litigants, reading such submissions 'to raise the strongest arguments they suggest.'" Benin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal citation omitted) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Because Plaintiff asserts that factors outside of his control prevented him from responding to the R & R until September 2015, the court construes Plaintiffs motion to reopen as a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b).

Under Rule 60(b), "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect" Fed.R.Civ.P. 60(b)(1). "The decision whether to grant a party's Rule 60(b) motion is committed to the sound discretion of the district court[.]" Stevens v.Miller, 676 F.3d 62, 67 (2d Cir. 2012) (internal quotation marks omitted). "Since [Rule] 60(b) allows extraordinary ...

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