United States District Court, E.D. Texas, Lufkin Division
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION FOR RELIEF FROM JUDGMENT
Clark, United States District Judge.
Robert Troy McClure, an inmate currently confined at the
Robertson Unit with the Texas Department of Criminal Justice,
Correctional Institutions Division, proceeding pro se and
in forma pauperis, filed this civil rights action
pursuant to 42 U.S.C. § 1983 against defendants Thorp,
Holderreith and Livingston. Pending is plaintiff's Motion
for Relief from Judgment filed June 27, 2017 (docket entry
March 23, 2016, Magistrate Judge Keith Giblin entered an
order in Civil Action Number 9:15cv130, severing
plaintiff's claims against defendant Lieutenant Torres
(docket entry no 1).These claims were severed into the
above-referenced civil action number and the case was
referred to United States Magistrate Judge Zack Hawthorn on
that same day. Plaintiff filed a consent to proceed before
the U.S. Magistrate Judge on April 14, 2016 (docket entry no.
3) and a motion for leave to file an amended complaint
(docket entry no. 4). In the motion for leave to file an
amended complaint, it was noted that plaintiff had been
transferred to the Stiles Unit. Id., pg. 2.
Plaintiff's motion for leave to file amended complaint
was granted on August 17, 2016 (docket entry no. 6) and the
Amended Complaint was filed on the same day (docket entry no.
7). In the amended complaint, plaintiff added claims against
defendants Thorp, Holderrieth and Livingston surrounding the
same events involving Lieutenant Torres at the Eastham Unit,
in addition to adding a request for damages. Specifically,
plaintiff alleged defendants Thorp and Holderrieth
participated in the use of force on October 27, 2015. In
addition, plaintiff alleged defendant Livingston, the
executive director of the Texas Department of Criminal
Justice, failed to properly supervise defendant Torres and
refused to file complaints against defendant Torres with
appropriate state and county officials.
Report and Recommendation was entered on March 16, 2017,
recommending plaintiff's claims against defendants Thorp,
Holderreith and Livingston be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(g) as plaintiff was no
longer in imminent danger of serious physical injury with
respect to these defendants (docket entry no. 11). On that
same day, an order for defendant Torres to answer was entered
(docket entry no. 12). In response to the order to answer,
the Office of the Attorney General, as Amicus Curiae, filed a
Motion to Revoke Plaintiff's In Forma Pauperis
status as it relates to his claims against defendant Torres
(docket entry no. 15).
Court never received objections to the Report and
Recommendation entered March 16, 2016. A Memorandum Opinion
and Order Adopting the Report and Recommendation and Partial
Judgment were entered on May 11, 2017 (docket entry nos. 17
& 18). Plaintiff filed a Motion for Relief from Judgment
pursuant to Federal Rule of Civil Procedure 60(b) on June 27,
2017 (docket entry no. 21). Included with this motion are
plaintiff's proposed Objections to the Report and
Recommendation. Id. This court, therefore, considers
the Motion for Relief from Judgment in light of
60(b) of the Federal Rules of Civil Procedure sets out five
specific bases for granting relief from a final judgment: (1)
mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence; (3) fraud, misrepresentation, or
misconduct of an adverse party; (4) the judgment is void; and
(5) satisfaction, discharge, or release of the judgment.
Fed.R.Civ.P. 60(b) (1)-(5). In addition, Rule 60(b) provides
that a court may relieve a party from a final judgment for
“any other reason justifying relief from the operation
of the judgment.” Fed.R.Civ.P. 60(b)(6). This
“any other reason” clause is a “grand
reservoir of equitable power” to do justice in a case
when relief is not warranted by the given enumerated grounds;
relief will be granted only if “extraordinary
circumstances” are present. Batts v. Tow-Motor
Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995)
(citations omitted). To prevail on a motion to set aside
judgment, a defendant must also show “good
cause.” Meaux Servs., Inc. v. Dao, 160 F.R.D.
563, 564 (E.D. Tex. 1995). Generally, Rule 60(b) is not to be
used as a substitute or alternative to appeal. Hill v.
McDermott, Inc., 827 F.2d 1040, 1042 (5th Cir. 19897)
(citations omitted). Such a motion must be made within one
year after entry of judgment for subsections (1), (2), and
(3), and otherwise, within a reasonable time. Fed.R.Civ.P.
Supreme Court has cautioned that Rule 60(b)(6) should only be
applied in extraordinary circumstances. See Ames v.
Miller, 184 F.Supp.2d 566, 575 (N.D. Tex. 2002) (citing
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S., 847, 863 (1988); Ackermann v. United States,
340 U.S. 193 (1950)). The court enjoys considerable
discretion when determining whether the movant has satisfied
the Rule 60(b)(6) standard. See Teal v. Eagle Fleet,
Inc., 933 F.2d 341, 347 (5th Cir. 1991).
cannot establish he was in imminent danger of serious
physical injury at the time he amended his complaint as he
was transferred to the Stiles Unit sometime in 2016.
Plaintiffs claims against defendants Thorp, Holderreith and
Livingston arose from the events involving defendant Torres
that occurred at the Eastham Unit in October of 2015.
Regardless, even at the time of the alleged assault,
plaintiff only made an allegation of imminent danger of
serious physical injury against defendant Torres. Section
1915(g) bars plaintiff from proceeding further with these
claims and plaintiffs objections are overruled.
has failed to show any of the bases outlined above,
extraordinary circumstances or good cause warranting relief
as required by Federal Rule of Civil Procedure 60(b). As a
result, Plaintiffs Motion for Relief from Judgment, in light
of his objections, is denied.
foregoing reasons stated herein, Plaintiff s Motion for
Relief from Judgment ...