United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
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
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.) 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.)
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.)
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. (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.
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).
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)(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.
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).
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.