United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA R JTHERFORD UNITED STATES MAGISTRATE JUDGE.
the Court in this pro se prisoner civil rights case
is Plaintiff Michael Elliott's “Formal Traverse in
Response to Magistrate's Findings in Challenge of
Administrative Remedy Exhaustion as an Impossibility and
Attack of Qualified Immunity Defense in Violation of Clearly
Established Laws.” (ECF No. 55). For the reasons
stated, the Court should construe Plaintiff's filing as a
Rule 60(b) Motion for Relief from Judgment and DENY
March 1, 2019, Plaintiff filed his “Formal Traverse,
” re-urging the arguments he made in response to
Defendant Tammy Sherman's Motion for Summary Judgment.
Plaintiff's “Traverse” appears to be an
untimely objection to the magistrate judge's February 6,
2019 Findings, Conclusions, and Recommendation, recommending
that Defendant Sherman's Motion for Summary Judgment be
granted and Plaintiff's claims against her be dismissed
with prejudice. FCR (ECF No. 51). Plaintiff had until
February 20, 2019, to object to the FCR but failed to do so.
Consequently, on February 25, 2019, the District Court
entered an Order Accepting the FCR and Final Judgment,
dismissing with prejudice Plaintiff's claims against
Sherman, the last remaining defendant. Ord. Accepting (ECF
No. 53); Feb. 25, 2019 Final J. (ECF No. 54). Given the
case's current posture, Plaintiff's filing should be
liberally construed as a motion for relief from judgment
under Fed.R.Civ.P. 60(b). See Smith v. Tex. Dep't of
Criminal Justice, Institutional Div., 79
Fed.Appx. 61, 62 (5th Cir. 2003) (per curiam) (construing
motion to reopen civil rights action that had been dismissed
under Rule 41(b) as arising under Rule 60(b)) (citing
Halicki v. La. Casino Cruises, Inc., 151 F.3d 465,
470 (5th Cir. 1998)); Green v. State Farm, 2017 WL
3835873, at *2 (N.D. Tex. Aug. 7, 2017), adopted by
2017 WL 3780488 (N.D. Tex. Aug. 31, 2017) (same).
60(b) provides for relief from a final judgment and states
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. P. 60(b). But “relief under Rule 60(b) is
considered an extraordinary remedy, ” and “the
desire for a judicial proceeding that is predictable mandates
caution against reopening judgments.” Carter v.
Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998) (internal
quotations and citations omitted).
Motion does not allege: mistake, inadvertence, surprise, or
excusable neglect; newly discovered evidence; fraud,
misrepresentation, or other misconduct by an opposing party;
that the judgment is void; that the judgment has been
satisfied, released, or discharged; that the judgment is
based on an earlier judgment that has been reversed or
vacated; or that applying the judgment prospectively is no
longer equitable. Fed.R.Civ.P. 60(b)(1)-(5). Thus, the Court
construes Plaintiff's Motion as requesting relief under
Rule 60(b)(6) for “any other reason that justifies
relief.” Fed.R.Civ.P. 60(b)(6); see also
Green, 2017 WL 3835873, at *2.
60(b)(6), however, “is a residual clause used to cover
unforeseen contingencies, '” and, like Rule 60(b)
relief generally, “‘it is a means for
accomplishing justice in exceptional
circumstances.'” Stipelcovich v. Sand Dollar
Marine, Inc., 805 F.2d 599, 604-05 (5th Cir. 1986)
(quoting Steverson v. GlobalSantaFe Corp., 508 F.3d
300, 303 (5th Cir. 2007)); see also Hess v.
Cockrell, 281 F.3d 212, 216 (5th Cir. 2002) (“Rule
60(b)(6) motions ‘will be granted only if extraordinary
circumstances are present.'”) (quoting Batts v.
Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir.
1995)). When ruling on a Rule 60(b) motion, courts should
(1) that final judgments should not lightly be disturbed; (2)
that the Rule 60(b) motion is not to be used as a substitute
for appeal; (3) that the rule should be liberally construed
in order to achieve substantial justice; (4) whether the
motion was made within a reasonable time; (5) whether if the
judgment was a default or a dismissal in which there was no
consideration of the merits the interest in deciding cases on
the merits outweighs, in the particular case, the interest in
the finality of judgments, and there is merit in the
movant's claim or defense; (6) whether if the judgment
was rendered after a trial on the merits the movant had a
fair opportunity to present his claim or defense; (7) whether
there are intervening equities that would make it inequitable
to grant relief; and (8) any other factors relevant to the
justice of the judgment under attack.
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402
(5th Cir. Unit A Jan. 1981) (citing United States v.
Gould, 301 F.2d 353, 355-56 (5th Cir. 1962)). Here,
Plaintiff's Motion does not raise any exceptional
circumstances entitling him to relief from the final
judgment. Instead, he restates the arguments he made in
response to Defendant Sherman's Motion for Summary
Judgment. Plaintiff, therefore, has failed to establish that
he is entitled to relief under Rule 60(b), and his Motion
should be denied.
the Court were inclined to consider Plaintiff's Motion on
the merits, it should still be denied. Plaintiff first argues
the Court should waive the requirement that he exhaust
administrative remedies. Pl.'s Mot. 5. He contends that
he has a history of invoking the grievance process and the
Court should assume he did so in this case. Id. He
further states that he in fact submitted a Step 1 grievance
to Captain Stevens in connection with the alleged August 11,
2015 incident, but Stevens refused to act on it and Plaintiff
was transferred to another unit before he could follow up.
Id. Thus, Plaintiff argues, he was prevented from
exhausting his administrative remedies. Id.
Plaintiff offers nothing but his wholly unsubstantiated
assertions to support his claim that prison officials
“covered up” his grievance and prevented him from
exhausting his administrative remedies. As set forth in the
February 6, 2019 Findings, Conclusions, and Recommendation,
Plaintiff had significant experience with the prison
grievance process, but there is no evidence that Plaintiff
initiated-much less exhausted-the process with respect to the
alleged August 11, 2015 incident. In the absence of such
evidence, Defendant Sherman is entitled to summary judgment
that Plaintiff failed to exhaust his administrative remedies
with respect to his claims.
also challenges the determination that Sherman is entitled to
qualified immunity. He repeats his claims that Sherman
falsified paperwork to cover up prison officials'
negligence and/or recklessness in connection with the alleged
August 11, 2015 incident. But again, Plaintiff offers no
evidence in support of his bald accusations of misconduct.
There is no evidence in the record that Sherman was involved
in the alleged August 11, 2015. In the absence of such
evidence, Defendant Sherman is entitled to summary judgment
on Plaintiff's claims against her.
foregoing reasons, the Court recommends that Plaintiff's
“Traverse, ” (ECF No. 55), be construed as a
motion under ...