United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
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.
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.
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].
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.
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)).
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
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
 The Court has denied Plaintiff's
request for the Court to order his Probation Officer to give
him access to online research legal ...