Reza Vafaiyan v. City Wichita Falls, et al

Filing

UNPUBLISHED OPINION FILED. [08-11153 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 11/17/2010 [08-11153]

Reza Vafaiyan v. City ase: 08-11153 Document: 00511276308 CWichita Falls, et al

Page: 1 Date Filed: 10/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-11153 S u m m a r y Calendar October 27, 2010 Lyle W. Cayce Clerk

R E Z A VAFAIYAN P la in t if f -A p p e lla n t v. C I T Y OF WICHITA FALLS, TEXAS; NORTH TEXAS DRUG TASK FORCE; B O B B Y DILBECK; CHRISTOPHER L TAYLOR; NFN LOVE, Officer; JOHN S P R A G I N S ; MARK BALL, Sergeant; WICHITA COUNTY SHERIFF D E P A R T M E N T ; JIM WHITEHEAD; TOM CALLAHAM, Wichita County S h e r iff; DARRON LIEKER D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 7:06-CV-69

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* R e z a Vafaiyan, Texas prisoner # 1361129, is serving a life sentence for a m o n e y laundering conviction. In 2007, Vafaiyan filed a 42 U.S.C. § 1983

c o m p la in t against numerous state officials relating to his arrest and in c a r c e r a tio n . The district court ordered Vafaiyan to respond to a motion

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 08-11153 Document: 00511276308 Page: 2 Date Filed: 10/27/2010 No. 08-11153 p u r s u a n t to Rule 7(a) of the Federal Rules of Civil Procedure to provide more fa c t u a l information regarding his allegations of misconduct. The court granted V a fa iy a n one extension of time. However, Vafaiyan failed to file a timely reply, a n d the court dismissed the action for want of prosecution. More than one year la t e r , Vafaiyan filed a motion pursuant to Rule 60(b) seeking reconsideration of t h e judgment on grounds of excusable neglect. The court denied that motion. Vafaiyan filed a second motion seeking reconsideration or findings and c o n c lu s io n s with respect to the denial of the first motion. The court denied the s e c o n d motion. Vafaiyan now appeals. B e c a u s e Vafaiyan's notice of appeal was untimely as to the underlying o r d e r of dismissal, we review only the denials of the postjudgment motions. See H a lic k i v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998). Our r e v ie w is for abuse of discretion. See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993). V a fa iy a n claims inadvertence and excusable neglect for failure to comply w it h the Rule 7(a) order, asserting that he was proceeding pro se, had difficulty w it h the English language, lacked access to a law library due to being moved to s e v e r a l units and placement in administrative segregation, a mail delay, lack of w r it in g materials, and health problems. Thus, he contends, he was entitled to r e lie f for excusable neglect under Rule 60(b). W e find no abuse of discretion. First, a Rule 60(b)(1) motion based on e x c u s a b le neglect must be filed within one year of entry of the judgment or order. FED. R. CIV. P. 60(c). Vafaiyan's first motion was filed at the earliest on

A u g u s t 28, 2008, more than one year after entry of the dismissal order. On that b a s is alone, the district court did not abuse its discretion. In addition, Vafaiyan h a s not demonstrated grounds for relief. The Rule 7(a) motion sought factual in fo r m a t io n , asking Vafaiyan to specify what the defendants conspired to do and t h e identity of each defendant engaged in the specific acts that he had alleged in his complaint. Vafaiyan has not shown how he was prevented from 2

Case: 08-11153 Document: 00511276308 Page: 3 Date Filed: 10/27/2010 No. 08-11153 r e s p o n d i n g . Even pro se litigants must comply with procedural rules, Birl v. E s te lle , 660 F.2d 592, 593 (5th Cir. 1981), and ignorance of the law is not a basis fo r Rule 60(b)(1) relief. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 357 ( 5 t h Cir. 1993). To the extent that Vafaiyan's motion might fall under Rule 6 0 (b )(6 ), which requires a showing of extraordinary circumstances, Vafaiyan's a r g u m e n t s likewise fail. See Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002). In sum, we cannot say that the district court's denial of Vafaiyan's first motion w a s "so unwarranted as to constitute an abuse of discretion." Seven Elves, Inc. v . Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). As Vafaiyan's second motion did n o t raise any different grounds, the district court likewise did not err by denying it . See Templet v. HydroChem Inc., 364 F.3d 473, 479 (5th Cir. 2004); Latham v . Wells Fargo Bank, N.A., 987 F.2d 1199, 1203-04 (5th Cir. 1993). W e also find no error in the district court's failure to provide reasons. See F ED. R. CIV. P. 52(a)(3), (b). To the extent that Vafaiyan complains about the la c k of appointed counsel, that issue was not encompassed in the postjudgment m o t io n s and, in any case, Vafaiyan showed no exceptional circumstances that w o u ld warrant the appointment of counsel. See Richardson v. Henry, 902 F.2d 4 1 4 , 417 (5th Cir. 1990). We do not address any arguments by Vafaiayan r e g a r d in g the merits of his § 1983 claims against the defendants as they are not p r o p e r ly before the court. T h e judgment of the district court is AFFIRMED.

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