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El-Bey v. State

United States District Court, W.D. North Carolina, Charlotte Division

October 19, 2017

JAMAL BULLOCK EL-BEY, Plaintiff,
v.
STATE OF NORTH CAROLINA, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER comes before the Court on Plaintiff's “Affidavit of Fact Legal Notice-Demand to Remove Filing Fee.” (Doc. No. 7). The motion will be denied.

         I. INTRODUCTION

         Pro se Plaintiff Jamal Bullock El-Bey is a state prisoner serving a 19-year sentence at the Lanesoboro Correctional Institution in Polkton, North Carolina, pursuant to his guilty plea to second-degree murder and first-degree burglary. (Doc. No. 1 at 21-23). Plaintiff filed the instant action under 42 U.S.C. § 1983. The Complaint is dated April 5, 2017, and was docketed on May 17, 2017. It names as Defendants: the State of North Carolina; North Carolina Governor Roy Cooper; North Carolina Division of Adult Correction; North Carolina Secretary of Prisons Erik A. Hooks; and Director of Prisons George T. Solomon. Plaintiff appears to allege that his North Carolina conviction is void on its face and that his sentence constitutes hostage-taking and slavery because he is a Moorish-American and therefore not subject to the North Carolina state court's jurisdiction. He also complains that official documents refer to his race as “Black” rather than “Moorish-American, ” which is an ongoing violation of due process and the 13th Amendment. He seeks immediate release and correction of his race to “Moorish-American.” Attached to the Complaint is a letter stating that he has enclosed an application to proceed without prepayment of costs, and that a money order made out to the Clerk of Court for $350 is enclosed. (Doc. No. 1 at 39).

         Docketed the same day as the Complaint is an application to proceed in forma pauperis. (Doc. No. 2). The Court ordered the correctional facility to provide a copy of Plaintiff's most recent trust account statement on May 24, 2017. (Doc. No. 3).

         Meanwhile, Plaintiff filed a notice of voluntary dismissal, (Doc. No. 4), that was signed on May 18, 2017, and docketed on May 25, 2017. The Clerk of Court administratively closed by the case that same day.

         A prisoner trust account statement from the correctional institution was docketed on June 13, 2017. (Doc. No. 5). The Court granted Plaintiff's motion to proceed in forma pauperis and directed monthly payments to be drawn from Plaintiff's prison trust account on June 20, 2017. (Doc. No. 6).

         Plaintiff filed the present “Affidavit of Fact…” on July 17, 2017. (Doc. No. 7). He asks that the $350 filing fee be removed from his prison account because he voluntarily dismissed the § 1983 suit before any judicial action was taken. In the alternative, if the filing fee is going to remain in place, he asks to re-open his § 1983 action. He again alleges that a $350 money order was enclosed with the Complaint and was accepted by the Court.

         A Petition for Writ of Prohibition was docketed in the Fourth District Court of Appeals on October 13, 2017, case number 17-2213, in which Plaintiff argues that the Court's imposition of the filing fee despite his voluntary dismissal in this case is a manifest injustice.[1]

         II. DISCUSSION

         Construing Plaintiff's pleading liberally, it appears that he is moving to alter or amend, or seek relief from judgment under Rules 59(e) and/or 60(b) of the Federal Rules of Civil Procedure, to relieve him from the obligation to pay the $350 filing fee and, alternatively, reopen the § 1983 case.

         A party may file a Rule 59(e) motion to alter or amend no later than 28 days after the entry of a judgment. Fed.R.Civ.P. 59(e). Such a motion may only be granted in three situations: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (internal quotation marks omitted).

         Rule 60(b) permits a court to “relieve a party of its legal representative from a final judgment, order, or proceeding” due to, inter alia, “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). A Rule 60(b)(1) motion must be filed no more than a year after entry of the judgment or order at issue. Fed.R.Civ.P. 60(c)(1). To obtain relief under the Rule, a party must demonstrate inter alia that he was not at fault and that the nonmoving party will not be prejudiced by the relief from judgment. Home Port Rentals, Inc. v. Ruben, 957 F.2d 126, 132 (4th Cir. 1992). The Fourth Circuit has noted that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable' neglect.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th Cir. 1996) (quoting Pioneer Investment Servs. Co., v. Brunswick Assoc. Ltd. Partnership et al., 307 U.S. 380, 392 (1993)). “Under all the provisions of Rule 60(b), a threshold condition for granting the relief is that the movant demonstrate that granting that relief will not in the end have been a futile gesture, by showing that she has a meritorious defense or claim.” Boyd v. Bulala, 905 F.2d 764, 769 (4th Cir. 1990). Motions filed under 60(b) lie largely within the trial court's discretion. Consolid. Masonry & Fireproofing, Inc. v. Wagman Const. Corp, 383 F.2d 249, 251 (4th Cir. 1967).

         Plaintiff filed the instant motion pursuant to the prisoner mailbox rule on July17, 2017, less than 28 days after the Court entered the Order at issue, and is therefore timely under both Rules 59(e) ...


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