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Thomas v. State

United States District Court, N.D. Texas, Dallas Division

May 7, 2017

BONNIE ALLEN THOMAS, Plaintiff,
v.
THE STATE OF TEXAS, et. al, Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE.

         By Special Order 3-251, this pro se case has been referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court is the plaintiff's post-judgment Motion for Emergency Hearing, filed May 3, 2018 (doc. 101). Based on the relevant filings and applicable law, the motion should be construed as arising under Rule 60(b) of the Federal Rules of Civil Procedure and DENIED.

         I. BACKGROUND

         Bonnie Allen Thomas (Plaintiff) filed this civil rights action under 42 U.S.C. §§ 1983 and 1985 and state law against the State of Texas, Johnson County, the former sheriff and a deputy, several state and municipal judges, the district attorney and an assistant district attorney, her ex-husband, his attorney, a private individual, and several unnamed defendants. (doc. 79 at 1, 13, 25-26, 28-40.)[1] She claimed that she “has been the target of an ongoing conspiracy of ... County officials to persecute and oppress her, and deny her justice in any court in ... County, on any matter, civil or criminal, ” in retaliation for a wrongful death action she and her siblings filed against the county and the sheriff, among others, in 2013. (Id. at 1.) The alleged conspiracy included giving her ex-husband sole custody of their three children despite his prior drug use. (Id. at 6-9.) The defendants moved to dismiss her claims on various grounds, including lack of subject matter jurisdiction, immunity, and failure to state a claim. (See docs. 38, 56, 64, 69, 80, and 81.) All of Plaintiff's claims were dismissed by judgment entered on March 12, 2018. (See docs. 91, 96, 97.)

         On April 11, 2018, Plaintiff filed a motion for an extension of time to file a notice of appeal, and it was construed as a notice of appeal by order dated April 12, 2018. (See docs. 98, 99.) Her appeal remains pending.

         On May 3, 2018, Plaintiff filed a motion for an emergency hearing in this court, alleging that “the state court knew [her ex-husband's] home was dangerous, her children are now in “a life threatening situation, ” and her oldest son is currently using and selling drugs and expressing suicidal ideation. (See doc. 101 at 1-2.) She states that she “need[s] help, [and her] only hope is federal court.” (Id. at 2.)

         II. RULE 60(b)

         Plaintiff's post-judgment request for emergency relief may be liberally construed as seeking relief under Federal Rule of Civil Procedure 60(b). See Nichelson v. United Dominion Realty Trust, 152 Fed.Appx. 421, 423 (5th Cir. 2005) (construing emergency motion filed after entry of order of dismissal but before entry of judgment as seeking relief under Rule 60(b)); Guy v. Briones, No. C-07-473, 2008 WL 3538684, at *2 (S.D. Tex. Aug. 8, 2008) (construing emergency motions for injunctive relief against dismissed defendants as arising under Rule 60(b)).

         Rule 60(b) provides that a court may relieve a party from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered earlier; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or is based on an earlier judgment that has been reversed or vacated, or applying the judgment prospectively is no longer equitable; or (6) any other reason that justifies relief. Fed. R. Civ. Proc. 60(b)(1)-(6).

         Plaintiff's motion does not specifically allege mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud, misrepresentation, or misconduct by an opposing party; a void judgment; that the judgment has been satisfied, released, or discharged, or is based on an earlier judgment that has been reversed or vacated, or that applying the judgment prospectively is no longer equitable. It may therefore be construed as arising under the “catch-all” clause of Rule 60(b)(6). See Hess v. Cockrell, 281 F.3d 212, 215-16 (5th Cir. 2002).

         Rule 60(b)(6) is “a residual clause used to cover unforeseen contingencies; that is, it is a means for accomplishing justice in exceptional circumstances.” Steverson v. GlobalSantaFe Corp., 508 F.3d 300, 303 (5th Cir. 2007) (quoting Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599, 604-05 (5th Cir. 1986)). Motions under this clause “will be granted only if extraordinary circumstances are present.” Hess, 281 F.3d at 216. In Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981), the Fifth Circuit set forth several considerations for evaluating a motion under Rule 60(b)(6): (1) that final judgments should not lightly be disturbed; (2) that a Rule 60(b) motion should not be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether, if the case was not decided on its merits due to a default or dismissal, the interest in deciding the case on its merits outweighs the interest in the finality of the judgment and there is merit in the claim or defense; (5) whether, if the judgment was rendered on the merits, the movant had a fair opportunity to present his claims; (6) whether there are intervening equities that would make it inequitable to grant relief; and (7) any other factors relevant to the justice of the judgment under attack. Id. at 402.

         Plaintiff appears to be re-urging her request for injunctive relief “directing that her child custody dispute” be moved to a different county in order to give her the opportunity “to have a fair and impartial judicial officer hear her child custody case . . . .” (See doc. 79 at 35-36.) Her complaint alleged that her ex-husband's alleged drug use would endanger the children, and now she seeks to provide evidence that the state court placed her children in a dangerous situation with her ex-husband, and that her oldest son is currently using and selling drugs and expressing suicidal ideation. (See docs. 79 at 6-9; 101 at 1-2.) Plaintiff's claim for injunctive relief was dismissed for lack of subject matter jurisdiction based on the Younger[2] abstention doctrine. She has not alleged or shown extraordinary circumstances such that denial of her post-judgment motion would be “so unwarranted as to constitute an abuse of discretion” given the Court's finding that jurisdiction over her claim was lacking. See Vafaiyan v. City of Wichita Falls, 398 Fed.Appx. 989, 990 (5th Cir. 2010) (noting standard of review for denial of Rule 60(b) motions). Additionally, granting the motion would not be consistent with the considerations listed in Seven Elves. Notably, her appeal remains pending.

         III. RECOMMENDATION

         Plaintiff's motion for an emergency hearing should be liberally construed as arising ...


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