United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
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.
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).
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).
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.
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.
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.
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.
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.
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
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
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) ...