Porter v. Sauve

605 F. App'x 72

• Court: Court of Appeals for the Second Circuit
• Decided: July 7, 2015
• Docket: 14-230
• Status: Unpublished

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.

Appellant Larry Porter, proceeding pro se, appeals the district court’s order denying without prejudice his motion to “reopen” the court’s dismissal of his underlying action for his failure to pay the filing fee, which the district court construed as a motion for relief from the final judgment pursuant to Fed.R.Civ.P. 60(b). We assume the parties’ familiarity with the un derlying facts, the procedural history of the case, and the issues on appeal.

We have jurisdiction to review only the denial of the Rule 60(b) motion and not the underlying final judgment dismissing the action for failure to pay the filing fee. See “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 n. 5 (2d Cir.2008). We review that denial for abuse of discretion. See Stevens v. Miller, 676 F.3d 62, 67 (2d Cir.2012). A court abuses its discretion when its decision (1) “rests on an error of law or a clearly erroneous factual finding;” or (2) “cannot be found within the range of permissible decisions.” Johnson ex rel. United States v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir.2011).

Here, the district court’s denial of the motion to reopen was not an abuse of discretion. Porter argues here, as he did before the district court, that ongoing Supreme Court proceedings may affect his entitlement to in forma pauperis (“IFP”) status, and further alleges that the Supreme Court has improperly refused to accept his submissions. The district court reasonably determined that this argument implicates Rule 60(b)(1), which allows relief from the final judgment on the basis of a “mistake.” The argument is, however, contradicted by the factual record. At the time the district court denied Porter’s motion, the Supreme Court’s public docket showed no subsequent filings after its denial of Porter’s petition for a writ of certio-rari, and this remains true. See Porter v. Sauve, No. 12-6804, — U.S. -, 133 S.Ct. 857, 184 L.Ed.2d 674. Thus, the district'court did not abuse its discretion in denying Porter’s motion: Porter had neither paid the filing fee nor shown that any proceedings were pending in the Supreme Court that might affect the district court’s order denying him IFP status.

Though outside the scope of this appeal, we parenthetically note that, by later paying the requisite filing fee, Porter has since cured the defect for which the district court dismissed his underlying complaint. As that dismissal was without prejudice, Porter may seek recourse before the district court.

We have considered Porter’s remaining' arguments and find them to be without merit. Accordingly, we AFFIRM the order of the district court.