Gunn v. Annucci

• Court: District Court, S.D. New York
• Decided: January 3, 2024
• Docket: 7:19-cv-10039
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT | | JAN 02 2098 SOUTHERN DISTRICT OF NEW YORK — ee KX U.S.D.C. W.P. DARRELL GUNN, Plaintiff, MOTION TO VACATE JUDGMENT Fed. R. Civ. P 60b(1) -Against- i eR 19-CV-10039 SIE)) cy □□ ANTHONY ANNUCCEL, et AL. 5 G iE | □□ 3 li y JAN 03 2024 □□ Defendants. mm me eX | PRO S= OFFICE PLEASE TAKE NOTICE, that upon the annexed affidavit of DARRELL GUNN, being duly sworn to on the 21 day of December 2023, the attached all

papers, and proceedings heretofore had, a motion will be made, in the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, or as soon thereafter as petitioner’s may be heard, for an order, an independent action pursuant to Rule 60 (b) (1), to reconsideration of its order to vacate and set aside the judgment made on July 21, 202! for the following reasons. There was a mistake, inadvertences and or excusable neglect when grievance comptaint GH-79334-15 was finally exhausted by C.O.R.C on November 2, 2016, Plaintiff was well within a 3-year time limit of P.L.R.A. Section 1997 (ce) (a) when Plaintitt filed a claim on October 25, 2019.

This motion is based upon declaration of Darrell Gunn, filed and attached to

this motion to vacate judgment upon the attached papers upon the Record and filed

in this action, and upon testimony to be presented before this Court on the hearing of this motion.

Dated: December 26, 2023 . Fallsburg, New York Respectfully submitted,

Darrel] Gunn, 03B2443 Sullivan Correctional Facility P.O. Box 116 Fallsburg, NY 12733-0116

To: Clerk of the Court Jennifer Gashi, Esq. U.S. District Court Assistant Attorney General Southern District of New York 44 South Broadway 300 Quarropas Street White Plains, N.Y. 10601 White Plains, N.Y. 10601

Plaintiff's motion for reconsideration under Federal Rule of Civil Procedure 60(b)(1) is denied. Such motic must be made within one year of entry of judgment. Fed. R. Civ. P. 60(c)(1). Judgment in this case was entered on July 21, 2021, so the motion is untimely. Further, it is in any even without merit. That Plaintiff not aware of the PLRA exhaustion requirement is unavailing. Generally speaking, ignorance of the law is n excuse. Singletary v. Fischer, 227 F.R.D. 209, 219 (E.D.N.Y. 2003). More fundamentally, it was not the exhaustion requirement but the three-year statute of limitations that doomed Plaintiffs claims. In other words, the claims were dismissed because Plaintiff did not sue within three years of the events about which complains. The three years starts to run from the date of injury, not the date of CORC’s decision. See Pear City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). The Clerk of Court is respectfully directed to send a cop of this endorsement to Plaintiff at the address above, and to terminate ECF No. 48. so ORDERED