United States District Court, E.D. Texas, Lufkin Division
MEMORANDUM OPINION AND ORDER DENYING 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 the
above-referenced civil rights action pursuant to 42 U.S.C.
§ 1983 against several defendants. Pending is
plaintiff's Motion for Relief from Judgment filed
November 9, 2017 (docket entry no. 42). For the reasons
stated herein, the motion is DENIED.
August 11, 2015, plaintiff filed his original complaint
(docket entry nos. 1 & 2). Plaintiff also filed an
emergency motion to proceed in forma pauperis
(docket entry no. 3). A Report and Recommendation was
ultimately entered on October 29, 2015, recommending
plaintiff's civil rights action should be dismissed
pursuant to 28 U.S.C. § 1915(g) (docket entry no. 12).
Plaintiff filed objections to the Report and Recommendation
on January 19, 2016 (docket entry no. 16). Out of an
abundance of caution, as it appeared plaintiff may be
alleging imminent danger, the Magistrate Judge withdrew the
Report and Recommendation (docket entry no. 20).
Report and Recommendation was then entered on March 23, 2016,
recommending plaintiff's motions for a temporary
restraining order and/or preliminary injunction be denied as
moot as plaintiff was transferred from the Eastham Unit to
the Stiles Unit (docket entry no. 25). The Report and
Recommendation was adopted, without objection, June 17, 2016
(docket entry no. 27). An order was also entered denying
plaintiff's emergency motion for writ of mandamus as moot
(docket entry no. 31).
September 15, 2016, the Magistrate Judge then entered an
order requiring plaintiff to replead his cause of action
(docket entry no. 34). After no response from plaintiff, a
Report and Recommendation was entered on October 27, 2017,
recommending the civil rights action be dismissed for want of
prosecution pursuant to Federal Rule of Civil Procedure 41(b)
(docket entry no. 35). No Objections to the Report and
Recommendation were filed. A Memorandum Opinion and Order
Adopting the Report and Recommendation and Final Judgment
were entered on December 7, 2016 (docket entry nos. 39 &
40). An Acknowledgment of Receipt was filed on January 4,
2017, showing plaintiff received a copy of the Report and
Recommendation sometime before that date (docket entry no.
41). In addition, in the Motion for Relief from Judgment,
plaintiff states he received a copy of the Memorandum Opinion
and Order Adopting the Report and Recommendation and Final
Judgment in December of 2016. Motion for Relief from
Judgment, pg. 4 (docket entry no. 42). Plaintiff, however,
did not file a Motion for Relief from Judgment and proposed
Amended Complaint until November 9, 2017 (docket entry nos.
42 & 43).
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).
does not state which subsection he seeks relief under in
support of this Motion for Relief from Judgment. Regardless,
the Court is constrained to find that waiting almost one year
to file an amended petition and a motion to reopen the case
can somehow be construed as filed within “a reasonable
time.” Although plaintiff appears to argue unit
transfers and poor medical treatment effected his ability to
timely file this Motion for Relief from Judgment in this
case, the Court takes judicial notice that plaintiff did file
multiple pieces of correspondence and pleadings in another
cases during this time period. See McClure v. Torres, et
al., Civil Action No. 9:16cv53; see also McClure v.
Livingston, et al., Civil Action No. 1:16cv69. Plaintiff
has, therefore, 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).
foregoing reasons stated herein, plaintiffs Motion for Relief
from Judgment ...