ANDERSON v. NOVANT HEALTH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ALBERT MARQUAVIOUS LAMAR )

ANDERSON, )

)

Plaintiff, )

)

v. ) 1:24CV22

)

NOVANT HEALTH, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned Magistrate Judge on

Plaintiff’s Motion for Relief from Judgment or Order (Docket Entry

16). (See Docket Entry dated May 3, 2024 (referring instant Motion

to undersigned).) For the reasons that follow, the Court should

deny the instant Motion.

INTRODUCTION

Plaintiff commenced this action by filing a pro se, 48-page

Complaint against 28 Defendants under 42 U.S.C. § 1983 (see Docket

Entry 2), along with a Declaration and Request to Proceed In Forma

Pauperis (Docket Entry 1). The undersigned Magistrate Judge

“recommended that this action be dismissed sua sponte without

prejudice to Plaintiff filing a new complaint, on the proper § 1983

forms, which corrects the defects cited [therein].” (Docket Entry

4 (the “Dismissal Recommendation”) at 4 (all-caps font and italics

omitted); see also id. at 1-2 (discussing defects that precluded

action from proceeding, including Plaintiff’s failure to “fully

exhaust available administrative remedies,” as well as to “make his

claims clear, set out all supporting facts, relate them to named

Defendants, and not include delusional allegations”).) Plaintiff

timely objected (see Docket Entries 7, 8), but the Court (per now-

Senior United States District Judge Loretta C. Biggs) “adopt[ed the

Dismissal] Recommendation” (Docket Entry 9 (the “Judgment”) at 1)

and “dismissed [the action] sua sponte without prejudice to

Plaintiff filing a new complaint, on the proper § 1983 forms, which

corrects the defects in the [Dismissal] Recommendation” (id. at 2

(bold, all-caps font, and italics omitted)). Plaintiff

subsequently filed a Petition for Rehearing (Docket Entry 10),

which the Court (per now-Senior Judge Biggs) denied (see Docket

Entry 11). He also appealed the Judgment to the United States

Court of Appeals for the Fourth Circuit. (See Docket Entry 12.)1

During the pendency of his appeal, “[i]n accordance with

[Federal] Rule [of Civil Procedure] 60(b)(6)[, ] Plaintiff

br[ought] th[e instant] Motion before th[is] Court based on an

inappropriate disposition of [the] Judgment.” (Docket Entry 16 at

1; see also id. at 16 (“Plaintiff seeks relief from [the] Judgment

to receive summons forms in this matter[ and] to test his claims on

the merits[. ] Plaintiff also seeks remuneration in the amount

1 That appeal remains pending. See Docket, Anderson v. Novant

Health, No. 24-6260 (4th Cir.).

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requested in the Complaint due to [the] Judgment being entered

contrary to course and practice of [the] Court upon this proper

showing of irregularity and merit.”).)2

DISCUSSION

“The Court must first address whether it possesses the

jurisdiction to hear [the instant Motion].” Retfalvi v.

Commissioner of Internal Revenue Serv., 216 F. Supp. 3d 648, 652

(E.D.N.C. 2016). “[A]n appeal divests a trial court of

jurisdiction over those aspects of the case involved in the appeal.

This principle, however, is not without exceptions.” Fobian v.

Storage Tech. Corp., 164 F.3d 887, 890 (4th Cir. 1999) (internal

citation and quotation marks omitted). For example, “the district

court retains jurisdiction over matters in aid of the appeal.

Thus, the question becomes whether a district court’s consideration

of a [Federal] Rule [of Civil Procedure] 60(b) motion while an

appeal from the underlying judgment is pending is in aid of the

appeal.” Id. (internal citation and quotation marks omitted). The

Fourth Circuit (A) has ruled “that it is,” id.; see also id. at 891

(“[W]hen a [Federal] Rule [of Civil Procedure] 60(b) motion is

filed while a judgment is on appeal, the district court has

2 Pin cites to the instant Motion refer to the page numbers

that appear in the footer appended to the instant Motion upon its

docketing in the CM/ECF system (not to any internal pagination).

Quotations from the instant Motion utilize standard capitalization

conventions for ease of reading.

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jurisdiction to entertain the motion . . . .”), and (B) has

mandated that district courts take this course in that situation:

If the district court determines that the motion is

meritless, as experience demonstrates is often the case,

the [district] court should deny the motion forthwith;

any appeal from the denial can be consolidated with the

appeal from the underlying order. If the district court

is inclined to grant the motion, it should issue a short

memorandum so stating. The movant can then request a

limited remand from th[e Fourth Circuit] for that

purpose.

Id. at 891.

Turning to the merits of the instant Motion, the Court should

note first that “Federal Rule of Civil Procedure 60(b) permits a

party to seek relief from a final judgment, and request reopening

of his case, under a limited set of circumstances.” Kemp v. United

States, 596 U.S. 528, 533 (2022) (emphasis added) (internal

quotation marks omitted). Specifically, “[t]o obtain relief from

a judgment under [Federal] Rule [of Civil Procedure] 60(b), a

moving party must first show (1) that the motion is timely,

(2) that he has a meritorious claim or defense, and (3) that the

opposing party will not suffer unfair prejudice if the judgment is

set aside.” United States v. Welsh, 879 F.3d 530, 533 (4th Cir.

2018). In addition, “[t]he party must also satisfy one of six

enumerated grounds for relief under [Federal] Rule [of Civil

Procedure] 60(b).” Id. Those grounds appear as follows:

(1) mistake, inadvertence, surprise, or excusable

neglect;

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(2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move

for a new trial under [Federal] Rule [of Civil Procedure]

59(b);

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an

opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively is

no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b) (“Rule 60(b)”); see also Kemp, 596 U.S. at

533 (“Rule 60(b)(6) provides a catchall for ‘any other reason that

justifies relief.’ This last option is available only when Rules

60(b)(1) through (b)(5) are inapplicable.”); Gonzalez v. Crosby,

545 U.S. 524, 535 (2005) (“requir[ing ] movant seeking relief under

Rule 60(b)(6) to show extraordinary circumstances justifying the

reopening of a final judgment” (internal quotation marks omitted)).

Here, Plaintiff has not satisfied the threshold requirement of

“show[ing] . . . that he has a meritorious claim,” Welsh, 879 F.3d

at 533. In that regard, the Dismissal Recommendation – adopted in

the Judgment (see Docket Entry 9 at 1) – identifies numerous

reasons why Plaintiff has not even alleged (must less shown) “that

he has a meritorious claim,” Welsh, 879 F.3d at 533. (See Docket

Entry 4 at 1 (“Plaintiff indicates in the Complaint that he did not

fully exhaust available administrative remedies. Exhaustion is

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required before Plaintiff may bring this action. . . .

[Plaintiff’s] two word explanation is not sufficient to explain his

admitted lack of exhaustion.”), 2 (“Plaintiff attempts to bring

claims against a hospital . . . . He also names several of its

staff as Defendants. However, defendants in suits under § 1983

must be state actors. . . . [T]he Complaint sets out no facts to

support a conclusion that the present Defendants related to the

hospital were state actors . . . . [S]ome [other Defendants]

appear to have been named based on their position as supervisors

[in the Davie County jail]. However, theories of respondeat

superior or liability predicated solely on a defendant’s identity

as a supervisor do not exist under § 1983. In other claims,

Plaintiff appears to attack the validity of his present

incarceration. However, he cannot do this in an action under

§ 1983. Plaintiff also attempts to base some claims on local or

state policies, which is not proper under § 1983. . . .

Plaintiff’s remaining claims appear unclear, conclusory, not tied

to any particular named Defendant, and/or delusional.” (internal

citation and italics omitted)).)

Nothing in the instant Motion undermines those (adverse)

assessments of Plaintiff’s claims. (See generally Docket Entry 16

at 1-17.) To the contrary, the instant Motion (like the Complaint)

prominently features conclusory and often delusional rhetoric

(including about Plaintiff’s claims). (See, e.g., id. at 2

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(objecting nonsensically to “dysfunctional related procedural

reproduction[] and a recycling of material that is disregarded

without rectitude”), 3 (declaring incoherently that “[a]ll

establishment under the Federal Rules of Civil Procedure have been

destructed, pertaining to the essential necessities of life

generally gathered organizational monument recognized to eradicate

a civil proceeding done by the espritdecorps [sic] of the

organization”), 4 (baldly asserting that undersigned and now-Senior

Judge Biggs “are discriminating on a case possessing merit in its

essential condition” and bizarrely insisting that “acts of

prostitution had been witnessed by the Magistrate Judge [] and

District Judge who adopted the [Dismissal] Recommendation”), 10

(complaining that Judgment “ignore[s] every portion of the

Complaint possessing merit” without showing that any portion of

Complaint possesses merit), 12 (suggesting that Dismissal

Recommendation “disregard[s ] Plaintiff’s evidence entirely except

where beneficial to [] Defendants,” but failing to identify any

evidence of meritorious claim), 17 (stating in conclusory fashion

that, “[i]n the light most favorable to the non-movant, taking the

evidence supporting the non-movants [sic] claims as true with all

contradictions, conflicts and inconsistencies resolved in the non-

movants favor [sic] so as to give the non-movant the benefit of

every reasonable inference[, the instant] Motion should be

granted”).)

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Nor does the instant Motion “satisfy one of [the] six

enumerated grounds for relief under Rule 60(b),” Welsh, 879 F.3d at

533. (See generally Docket Entry 16 at 1-17.) Of particular

salience on that front, the instant Motion’s introductory paragraph

states that Plaintiff brought the instant Motion, “[i]n accordance

with Rule 60(b) (6), .. . based on an inappropriate disposition of

[the] Judgment.” (Id. at 1 (emphasis added).) “Awarding relief in

this ‘catch all’ category is exceedingly rare.” Williams v.

Holley, Civ. A. No. 16-623, 2017 WL 550034, at *4 (D. Md. Feb. 10,

2017) (unpublished); accord, e.g., Diaz v. Ethicon, Inc., No.

2:18CV893, 2023 WL 1930370, at *2 (S.D.W. Va. Feb. 10, 2023)

(unpublished); Belfor USA Grp., Inc. v. Banks, No. 2:15CV1818, 2017

WL 372060, at *2 (D.S.C. Jan. 26, 2017) (unpublished).

The instant Motion does not qualify as one of those

exceedingly rare cases warranting relief under Rule 60(b) (6),

particularly given that, by “inappropriate disposition” (Docket

Entry 16 at 1), the instant Motion appears to mean that the

Judgment constitutes an incorrect legal ruling (see, e.g., id. at

2 (grousing about “untrustworthy interpretation of cited legal

authorities” and describing Judgment as “clearly contrary to law”),

5 (purporting to “address[] the Judges [sic] abuse of discretion,

lack of clear reasoning and implied uncomprehensive [sic] order”

and inveighing against the undersigned and now-Senior Judge Biggs

for “devistatingly [sic] insufficient unsatisfactory job

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performance”), 6 (“[T]he rooted information in the Judgment was not

set aside by this Court. This is a clear indication of the

District Judges [sic] abuse of discretion.”), 8 (describing “this

matter [as one] in which an enormous amount of rules out of the 87

[Federal] Rules of [Civil] Procedure have been violated”), 12

(implying that Judgment constituted “abuse of discretion

obstructing the rule that all courts shall be open, every person

for an injury done him in his lands, goods, person, or reputation

shall have remedy by due course of law”)).

But “Plaintiff's apparent disagreement with the Court’s ruling

on exhaustion [and other] grounds [for dismissal of this action] is

not a basis for granting relief from judgment under Rule

60(b)[(6)]. Indeed, mere disagreement with a court’s legal

analysis does not justify extraordinary relief under Rule

60(b)(6)’s catchall provision.” LaTisha P. v. O’Malley, Civ. Case

No. 21-2644, 2024 WL 5150519, at *3 (D. Md. Dec. 18, 2024)

(unpublished) (internal citation and quotation marks omitted); see

also Richardson v. Kana, No. 1:04CV59, 2005 WL 3695764, at *1 (E.D.

Va. Feb. 24, 2005) (unpublished) (declining to set aside order

dismissing case where the plaintiff “offer[ed] no reason

‘justifying relief from the operation of the judgment’ as required

by Rule 60(b)(6), other than her disagreement with the [c]ourt’s

decision and her refusal to recognize that federal courts are

courts of limited jurisdiction”).

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The instant Motion, at one point, does allude to “mistake as

grounds for relief from judgment includ[ing] legal error even if

the error is not obvious” (Docket Entry 16 at 3) and, at another

point, does state that “the Court could set aside [the] Judgment

for mistake” (id. at 14). And, in fact, “Rule 60(b) (1) covers all

mistakes of law made by a judge,” Kemp, 596 U.S. at 534; see also

id. at 535 (“[A]s currently written, ‘mistake’ in Rule 60(b) (1)

includes legal errors made by judges.”); however, just as the

instant Motion does not establish that Plaintiff possesses a

meritorious claim (for reasons shown above), it likewise does not

establish that the Court made a mistake by entering the Judgment

dismissing this action (without prejudice) because the Complaint

asserts legally defective claims. (See generally Docket Entry 16

at 1-17.) Plaintiff thus has not satisfied Rule 60(b) (1).°

The instant Motion also accuses the Court of entering a

“fraudulent Judgment” (id. at 2) and the specified grounds for

relief under Rule 60(b) include “fraud,” Fed. R. Civ. P. 60(b) (3).

Yet, the only statement within the instant Motion that conceivably

could relate to that ground for relief appears as follows:

> The instant Motion also refers to “surprise” (Docket Entry

16 at 14), another term that appears in Rule 60(b) (1), see Fed. R.

Civ. P. 60(b) (1), but the instant Motion does not develop any

argument regarding surprise (see generally Docket Entry 16 at 1-

17). “[C]onclusory allegations do not support any basis to claim

. . . Surprise (Rule 60(b) (1)) . . . .” Kennedy Funding, Inc. v.

Oracle Bus. Devs., LLC, Civ. A. No. 2012-9, 2020 WL 4353558, at *8

(D.V.1I. July 29, 2020) (unpublished).

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“Magistrate Judge Patrick Auld is believed to be a 974 Insane

Gangster Decifoul [sic] which is a conflict of interest in [] the

[Dismissal] Recommendation.” (Docket Entry 16 at 7.) Research has

confirmed the existence of a group in Chicago, Illinois, called

“the Insane Gangster Disciples,” Wilborn v. Pfister, No. 14C5469,

2017 WL 3278942, at *2 (N.D. Ill. Aug. 2, 2017) (unpublished),

aff’d sub nom., Wilborn v. Jones, 964 F.3d 618 (7th Cir. 2020),

whose members “attempted to take over the drug business in [a

particular] building,” id.; see also United States v. Lucas, Nos.

19-6390/6392/6393/6394, 2021 WL 4099241, at *1 (6th Cir. Sept. 9,

2021) (unpublished) (“The Gangster Disciples (or ‘GDs’) are a

national street and prison gang founded in Chicago in the late

1960s . . . . The gang divides states into regions, often named

after the corresponding area code . . . .”).4 Plaintiff’s

unsupported belief that the undersigned Magistrate Judge belongs to

such a group, and that such membership creates an unspecified

conflict of interest in this case does not provide a basis for

relief from the Judgment due to fraud. See, e.g., Tyson v. Ozmint,

246 F.R.D. 517, 521 (D.S.C. 2007) (“[U]nsupported allegations of

fraud alone, without evidence, are not grounds for vacating a

judgment under Rule 60(b)(3).”).

4 “974 is not a valid area code.” National Phone Number

Registry (Jan. 28, 2025, 9:31 AM), https://npnr.org/974/; but see

National Phone Registry (Jan. 28, 2025, 9:31 AM),

https://npnr.org/947/ (“Area code 947 is assigned to use in

Michigan since Sep[tember] 07, 2002.”).

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Finally, the instant Motion asserts that, “in violation of

Rule 60(b)(4)[,] Document 11 filed 03/11/24 is void as it refers to

[ ] Plaintiff as the defendant in this action . . . .” (Docket

Entry 16 at 9 (referring to Docket Entry 11).) The cited rule

provision authorizes relief when “the judgment is void[.]” Fed. R.

Civ. P. 60(b)(4). “An order is ‘void’ for purposes of Rule

60(b)(4) only if the court rendering the decision lacked personal

or subject matter jurisdiction or acted in a manner inconsistent

with due process of law.” Wendt v. Leonard, 431 F.3d 410, 412 (4th

Cir. 2005). Because Plaintiff has identified only a scrivener’s

error in a post-judgment order denying rehearing, not any lack of

jurisdiction or denial of due process in regard to the entry of the

Judgment, the Court should deny relief under Rule 60(b)(4).

CONCLUSION

Plaintiff has not established entitlement to relief from the

Judgment under Rule 60(b).

IT IS THEREFORE RECOMMENDED that the instant Motion (Docket

Entry 16) be denied.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

January 30, 2025

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