Flemons v. Devane et al

Filing 104

OPINION AND ORDER denying 100 Motion to Reopen Case; granting 103 Motion to Supplement; denying 103 Motion to Appoint Counsel. Signed by Honorable P. K. Holmes III on September 12, 2023. (tg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
AARON FLEMONS
v.

PLAINTIFF
No. 2:16-cv-2037

JOHN DEVANE et al.

DEFENDANTS
OPINION AND ORDER

Before the Court is plaintiff Aaron Flemons’s third motion to reopen case and appoint
counsel (Doc. 100), as well as Mr. Flemons’s motion to supplement that motion with additional
argument and information (Doc. 103). For the reasons given below, the motion to supplement will
be granted and the motion to reopen will be denied.
As the Court recounted in a previous order:
The parties reached a settlement of all remaining claims during a settlement
conference before Chief United States Magistrate Judge Mark E. Ford on April 12,
2022. Mr. Flemons, who is an incarcerated civil rights claimant, was present at that
settlement conference and was represented there by court-appointed counsel. After
a two-and-a-half-month delay, the parties filed a joint stipulation of dismissal
pursuant to their settlement agreement. See Doc. 94. Five months later, on
December 8, 2022, Mr. Flemons filed a motion (Doc. 96) pro se, requesting that
this case be reopened and that new counsel be appointed for him. He alleged that
he never signed the written settlement agreement, and that his attorney nevertheless
stipulated to dismissal of his claims without his permission. The Court denied that
motion because it provided “no basis for concluding that the joint stipulation of
dismissal filed in this case was anything other than the consequence of Mr.
Flemons’s deliberate choice to settle which he made with advice from counsel
during the April 12 settlement conference.” See Doc. 97, p. 3 (internal quotation
marks omitted). In particular, the Court noted that Mr. Flemons’s motion did not
allege that payment under the settlement agreement had not been completed or that
the terms of the written agreement he had been presented with after the settlement
conference differed in any material way from the settlement that had previously
been reached during that conference.
(Doc. 99, pp. 1–2).

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Mr. Flemons then filed a second motion to reopen the case and appoint new counsel. The
Court denied that motion as well, reasoning as follows:
Mr. Flemons now alleges that “[t]o date I’ve still not received any payment.” See
Doc. 98, ¶ 4. However, Mr. Flemons also attached correspondence from his
attorneys that clearly shows the settling defendants provided Mr. Flemons’s courtappointed counsel with the payment due to him under the terms of the settlement
agreement. That correspondence also shows that the only reason Mr. Flemons had
not yet received this payment was because he was failing to communicate with his
attorneys, refusing to provide his attorneys with written instructions on where to
send the check, and refusing to return a signed copy of the written agreement to his
attorneys. See generally Docs. 98-1, 98-2. The post-settlement breakdown in
communication between Mr. Flemons and his attorneys does not implicate the
validity of the settlement agreement that the parties reached during the April 12
settlement conference, nor does it call into question the defendants’ compliance
with the terms of that agreement.
Id. at 2.
Mr. Flemons then filed a third motion to reopen the case and appoint new counsel, after
which the Court entered an order (Doc. 101) directing the warden at the unit where Mr. Flemons
is incarcerated to make Mr. Flemons available for consultation with his legal team. After meeting
with his legal team, Mr. Flemons filed a motion to supplement his third motion to reopen with
additional argument and information. The Court will grant the motion to supplement and will
consider the argument and information contained therein when ruling on Mr. Flemons’s third
motion to reopen.
In his third motion to reopen and his motion to supplement, Mr. Flemons alleges the
following material facts:
•

Mr. Flemons is disappointed with his attorney because at the settlement conference Mr.
Flemons ended up agreeing to a settlement of $2,500.00, even though before the settlement
conference his attorney told him he would be able to get $3,000.00. See Doc. 100, p. 3.

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•

In a videoconference with his attorney following the settlement conference, Mr. Flemons
informed his attorney that the settlement check should be sent to Mr. Flemons’s sister. See
id.

•

In a letter that Mr. Flemons sent to his attorney following that videoconference, Mr.
Flemons authorized his attorney to sign the written settlement agreement on his behalf. See
id.

•

After the Court’s most recent order directing the warden to make Mr. Flemons available
for consultation with his legal team, Mr. Flemons and his attorney had another
videoconference. At this videoconference, Mr. Flemons asked his attorney whether he was
legally required to pay a filing fee for his previous appeal, and if so then whether it has
been fully paid; his attorney did not know the answers to those questions at that time. See
Doc. 103, p. 1.

•

After that last videoconference, Mr. Flemons wrote his attorney a letter, complaining that
“you allowed and tried to convince me to agree to a settlement agreement that did not cover
the 8th circuit filing fee for an appeal” (emphasis in original), and instructing his attorney
to “1.) verify if I was charged for the appeal to the eighth circuit – and if I was, re-open my
case (settlement agreement) and include this in the settlement terms; or 2.) re-open case for
jury trial.” See id. at 3.
Assuming for the sake of argument that all of these allegations are true, all they show is

that—as the Court has already found in ruling on his previous motions to reopen—Mr. Flemons
made a deliberate choice, with advice from counsel, to settle his case on terms that he subsequently
came to regret; that he is now attempting to renegotiate his settlement agreement on terms that are
more favorable to him; and that as a result of this, payment of his settlement check has been held

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up. As the Court has also repeatedly observed, backing out of valid settlement agreements is not
a proper function of a motion for relief from a final judgment, order, or proceeding under Federal
Rule of Civil Procedure 60(b). See Mardanlou v. Gen. Motors Corp., 69 F. App’x 950, 952 (10th
Cir. 2003).
IT IS THEREFORE ORDERED that plaintiff Aaron Flemons’s motion to supplement
(Doc. 103) is GRANTED, and his third motion to reopen case and appoint counsel (Doc. 100) is
DENIED.
IT IS SO ORDERED this 12th day of September, 2023.

/s/P. K. Holmes, III
P.K. HOLMES, III
U.S. DISTRICT JUDGE

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