United States District Court, W.D. Louisiana, Lafayette-Opelousas Division
REBECCA F. DOHERTY, District Judge.
Before the Court is the pleading entitled "Motion for Reconsideration - Emergency (Last Try") [Doc. 14] filed by pro se petitioner Frank David Beaullieu. This Court notes the petitioner does not identify what prior ruling of this Court he wishes to have reconsidered nor the standard of law under which this Court should make such a determination.
The Court is bound to interpret pro se pleadings liberally, see, e.g., Cook v. Texas Dep't of Criminal Justice, 376 F.3d 166, 168 n.1 (5th Cir. 1994), and has done so throughout this proceeding. In the instant motion, the petitioner rehashes what appear to be old arguments made in prior filings to the Court, without identifying a specific ruling for which he seeks reconsideration. To the extent the petitioner seeks reconsideration of this Court's ruling denying the previously-filed "Protest and Cry for Injunction and Release of Wrongful Lien/Levy (Unwarranted) and Restitution Title U.S. 1964/Abatement" [Doc. 1], such request is without merit. In the spirit of liberal interpretation, this Court deemed that pleading as a motion seeking a temporary restraining order ("TRO") against the Internal Revenue Service, a government agency, for release of a wrongful levy, as well as asserting claims for a warrantless seizure of his property with no probable cause in violation of the 4th Amendment of the United States Constitution, violation of the plaintiffs due process rights, and cruel and unusual punishment in violation of the 8th Amendment. That motion was denied, this Court concluding that the petitioner could not seek a TRO against the Internal Revenue Service, an agency of the federal government, for release of a wrongful levy under the Anti-Injunction Act, 26 U.S.C. § 7421, and that no exceptions to the Anti-Injunction Act were shown to be applicable. Therefore, as the petitioner failed to allege any facts in his complaint that would give rise to an action falling under one of the statutory exceptions to the Anti-Injunction Act, this Court concluded the request for injunctive relief was barred by the Act, and petitioner presents no evidence in the pending motion that warrants reconsideration of that ruling.
The instant case was dismissed by the Clerk of Court on November 21, 2011 for failure to effect service within 120 days [Doc. 9]. On November 24, 2011, the petitioner filed a "Motion to Reopen/Reinstate the Case, " [Doc. 10] which this Court denied for many of the same reasons cited herein with respect to petitioner's request for a TRO.
The Fifth Circuit has held a motion which challenges a prior judgment on its merits will be treated as either a motion "to alter or amend" under Rule 59(e) or a motion for "relief from judgment" under Rule 60(b), depending on when the motion was filed. If the motion was filed within twenty-eight days of the entry of judgment, it will be considered under Rule 59(e); if filed after that time period, it will be treated as a motion under Rule 60(b). See Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 (5th Cir. 1991), citing Lavespere v. Niagara Mack & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990) (overruled on other grounds). In the instant case, the petitioner filed his motion for reconsideration more than three months after the denial of his motion to reopen the case, therefore the motion is properly considered under Rule 60(b).
Fed. R. Civ. P. 60(b) ("Grounds for Relief from a Final Judgment, Order, or Proceeding") provides as follows:
On 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;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 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 ...