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Green v. Mitchell

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

March 14, 2019

LOWELL QUINCY GREEN, ID # 518622, Plaintiff,
v.
HON. K. NICOLE MITCHELL, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

         By Special Order No. 3-251, this pro se prisoner case has been automatically referred for judicial screening. Before the Court is the plaintiff's Motion to Correct a Void Judgment under Texas State Law § 31.07, received on March 12, 2019 (doc. 9). Based on the relevant filings and applicable law, the motion should be construed as seeking relief under Fed.R.Civ.P. 60(b) and DENIED.

         I. BACKGROUND

         The plaintiff filed a complaint against a United States Magistrate Judge in the Eastern District of Texas based on her handling of his previous civil rights case. (See doc. 2 at 1-2.)[1] On January 7, 2019, it was recommended that the case be summarily dismissed as barred by the “three-strikes” rule of 28 U.S.C. § 1915(g), unless the plaintiff timely paid the filing fee. (See doc. 3.) The plaintiff filed objections. (See doc. 4.) The recommendation was accepted, and the case was dismissed as three-strikes barred on January 23, 2019. (See docs. 5, 6.)

         The plaintiff filed an untitled motion (doc. 7), received on February 22, 2019, that complained about the handling of the previous civil rights case and sought reinstatement of this case. On February 25, 2019, it was recommended that the motion be construed as a motion under Fed.R.Civ.P. 59(e) and denied because he still has not paid the filing fee (doc. 8.)

         The plaintiff now alleges that his conviction in Cause No. 89-97008 in Dallas County, Texas, is void because the state court lacked jurisdiction based on a void indictment.[2] (See doc. 9 at 4-5.) He contends that the defendant United States Magistrate Judge lacked authority to enforce his unlawful restraint in the state criminal case. (See doc. 9 at 6-7.) He also asserts that this Court lacks authority to impose § 1915(g) on a void conviction. (See doc. 9 at 7.) He has not paid the filing fee.

         II. RULE 60(b)

         The plaintiff's motion may be liberally construed as a motion seeking relief under Federal Rule of Civil Procedure 60(b). See Smith v. Texas Dep't of Criminal Justice, Institutional Div. 79 Fed.Appx. 61, 62, (5th Cir. 2003).

         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 it is based on an earlier judgment that has been reversed or vacated, or that applying the judgment prospectively is no longer equitable; or (6) any other reason that justifies relief. Fed. R. Civ. Proc. 60(b)(1)-(6).

         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.

         The plaintiff's argument lacks merit. The merits of claims are irrelevant to the determination of whether the three-strikes rule bars him from proceeding in forma pauperis. See Bishop v. Sargent Dischner, 16 Fed.Appx. 891, 894 (10th Cir. 2001) (merits of claims irrelevant to whether plaintiff was three-strikes barred from proceeding in forma pauperis on appeal). A court may dismiss a complaint for failure to pay the filing fee as ordered. See Wilson v. Moreno, 95 F.3d 46 (5th Cir. 1996) (district court did not err in dismissing case where plaintiff did not comply with court order to file application to proceed in forma pauperis or pay the filing fee).

         The plaintiff has not shown a basis for relief under Rule 60(b). He has not alleged extraordinary circumstances such that denial of his motion would be “so unwarranted as to constitute an abuse of discretion.” 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). Nor would granting his motion be consistent with the considerations listed in Seven Elves. He is barred from proceeding in forma pauperis without prepayment of the filing fee under the three-strikes rule, and he has paid the filing fee.

         III. ...


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