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Wiand v. Mejia

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

April 4, 2018

MELVIN WIAND, Plaintiff,
v.
EDDY MEJIA, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE

         On August 30, 2017, the District Court entered two Orders Accepting Findings, Conclusions, and Recommendations (the “Recommendations”) of the United States Magistrate Judge, which recommended granting separate motions to dismiss all the claims brought by Plaintiff Melvin Wiand against the Defendants in this action, for failure to exhaust administrative remedies. On the same day, the District Court entered a Judgment dismissing this case without prejudice. Almost four months later, on December 28, 2017, Plaintiff filed a “Motion to Reopen and Consideration for Response to Magistrate [Judge]'s Findings, Conclusions and Recommendation Due to Excusable Neglect and Procedural Due Process Rights.” See Mot. to Reopen [ECF No. 73]. For the following reasons, the District Court should DENY Plaintiff's Motion to Reopen.

         As grounds for his Motion, Plaintiff contends he was denied an opportunity to object to the Recommendations, which were both entered on August 8, 2017 [ECF Nos. 64 & 65], because he never received copies of the Recommendations. Plaintiff states that he moved several times in August 2017, and did not have a permanent address where he could receive mail. He also states that he was hospitalized during the month of August 2017. See Mot. to Reopen 2-3. Plaintiff further argues that his Probation Officer prevented him from accessing online legal research materials, which he needs to prepare a response to the Recommendations. See Mot. to Reopen 3.[1]

         In response, Defendants argue that Plaintiff's Motion should be denied, because he failed to show the excusable neglect necessary to set aside the Judgment under Fed.R.Civ.P. 60. See Resp. 1 [ECF No. 77]. Defendants argue the record shows that Plaintiff: (1) failed to respond to two separate motions to dismiss; (2) failed to inform the Court of his address change; (3) failed to monitor the status of his case; and (4) was not incapacitated. See Resp. 1. Defendants also submit the Declaration of Plaintiff's Probation Officer, wherein the Probation Officer states that Plaintiff had access to a telephone with internet connection that was not monitored by the U.S. Probation Office, between August and November of 2017, and that Plaintiff used that telephone to view pictures of naked children in violation of the terms of his supervised release. See Defs.' App. 3 [ECF No. 78-1] & 14-15 [ECF No. 78-2]. Defendants also submit the Declaration of the Probation Officer who supervised Plaintiff from August 3, 2017 through October 26, 2017, wherein the Probation Officer disputes Plaintiff's claim that he was “bedridden and in convalescence from his gallbladder surgery, ” and states that Plaintiff was able to climb stairs, walk to a bus stop and a convenience store, and take public transportation to sex offender classes during the time she supervised him. See Defs.' App. 17 [ECF No. 78-3].

         Plaintiff reiterates in his reply that he never received either of the Recommendations. See Reply 5 [ECF No. 81]. Plaintiff also states that he attended some of his sex offender classes, but that he missed group sessions on October 18th and October 25th due to illness. See Reply 7-8. Plaintiff states that after he attended the classes, he was bedridden for at least 3 days afterwards, and that he only frequented close-by establishments to obtain food. See Reply 8. Plaintiff further argues that Defendants are not qualified to give medical opinions on Plaintiff's physical condition. See Reply 8-9. Plaintiff also reiterates his argument that he should be given access to online research materials. See Reply 10. Plaintiff contends that his Motion to Reopen should be granted, because he has demonstrated excusable neglect under Fed.R.Civ.P. 60(b)(1). See Reply 10.

         Rule 60(b) provides that:

On motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. Proc. 60(b)(1)-(6). “Th[e] [Fifth] [C]ircuit has stated: [t]ypically, ‘[m]otions under Rule 60(b) are directed to the sound discretion of the district court, and its denial of relief upon such motion will be set aside on appeal only for abuse of that discretion.'” Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998) (quoting Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)).

         “Under this standard, ‘[i]t is not enough that the granting of relief might have been permissible, or even warranted-denial must have been so unwarranted as to constitute an abuse of discretion.'” Pettle v. Bickham, 410 F.3d 189, 191 (5th Cir. 2005) (quoting Eskenazi, 635 F.2d at 402). The Fifth Circuit has “consistently held that the relief under Rule 60(b) is considered an extraordinary remedy and that the desire for a judicial process that is predictable mandates caution in reopening judgments.” Id. (quoting Fenner, 136 F.3d at 1007; Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157, 160 (5th Cir. 1990)) (internal quotation marks and alterations omitted).

         Upon consideration, the Court finds that Plaintiff has not shown he is entitled to the relief requested. Specifically, as Defendants argue, the record demonstrates that Plaintiff had the ability to monitor the status of his case during the relevant time period, but he failed to do so. Plaintiff did not timely file objections to the Recommendations; nor did he timely file any response to the two Motions to Dismiss, filed in February and April of 2017, which the Recommendations recommended granting. Furthermore, the Court notes that Plaintiff does not make any argument that his claims are not subject to dismissal for failure to exhaust administrative remedies. Therefore, the District Court should not exercise its discretion to grant Plaintiff relief under Fed.R.Civ.P. 60(b), and should DENY Plaintiffs Motion to Reopen Case [ECF No. 73].

         SO RECOMMENDED.

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Notes:

[1] The Court has denied Plaintiff's request for the Court to order his Probation Officer to give him access to online research legal ...


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