Holloway v. Banks et al
Filing
46
ORDER denying 35 Motion for Reconsideration ; denying as moot 38 Motion to Amend/Correct Signed by Honorable David C. Bramlette, III on 9/19/2013 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JASON HOLLOWAY
PLAINTIFF
VS.
CIVIL ACTION NO. 5:11-cv-143(DCB)(JMR)
JACQUELYN BANKS; L. PERRY;
SUE BUCKHALTER; UNKNOWN WILLIAMS;
MRS. GRIFFIN; MRS. DENNIS; MRS. RODGERS;
MR. WALKER; MRS. RAMSEY; D. HOLMES;
MRS. VINES AND E. SCOTT
DEFENDANTS
ORDER
This cause is before the Court on the pro se plaintiff Jason
Holloway (“Holloway”)’s motion for reconsideration (docket entry
35) of this Court’s Order adopting Chief Magistrate Judge John M.
Roper’s
Report
and
Recommendation
and
dismissing
this
action
without prejudice. Also pending is the plaintiff’s motion to amend
complaint (docket entry 38).
Having carefully considered the
plaintiff’s motions, and being fully advised in the premises, the
Court finds as follows:
This action was commenced on October 3, 2011, with the filing
of the plaintiff’s Complaint alleging unconstitutional conditions
of confinement during his incarceration in the Wilkinson County
Correctional Facility (“WCCF”), pursuant to 42 U.S.C. § 1983.
The
Complaint alleges medical mistreatment by WCCF staff between March
31, 2011, and April 17, 2011.
The Complaint also alleges that on
June 17, 2011, the plaintiff “snitched on a lot of inmates and
police,” and that consequently he feared for his life and requested
a transfer, but the transfer was denied.
On October 4, 2011, Magistrate Judge Roper entered an order
warning the plaintiff that “[f]ailure to advise this court of a
change of address or failure to comply with any order of this court
will be deemed as a purposeful delay and contumacious act by the
plaintiff and may result in the dismissal of this case.”
(docket entry 4), p. 2.
Order
On November 8, 2011, an Order was entered
by the undersigned district judge containing the same warning as
Magistrate Judge Roper’s October 4 Order. Order (docket entry 13),
p. 1.
On December 28, 2011, the plaintiff filed a motion to amend
his complaint.
On January 19, 2012, he wrote to the clerk of court
advising that he would be released from prison on January 20, 2012,
and informing the Court of his new address in Corinth, Mississippi.
On February 8, 2012, an Order was entered granting the plaintiff’s
motion to amend his complaint, and allowing him 20 days to file his
amended complaint.
The Order was mailed to the Corinth address
provided by the plaintiff and was not returned undeliverable.
On
February 9, 2012, the Court entered a Scheduling Order providing a
July 11, 2012, discovery deadline and a July 31, 2012, dispositive
motion deadline.
In addition, a separate text order was entered.
These were also mailed to the Corinth address and not returned
undeliverable.
The plaintiff did not amend his complaint, and did
not otherwise communicate with the Court.
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On July 11, 2012, the Court set an omnibus hearing for
September 10, 2012.
A copy of the text order setting the hearing
was mailed to the Corinth address via certified mail.
On
July 23,
2012, the clerk of court received the returned certified letter
addressed
to
the
plaintiff,
marked
“Return
to
Deliverable as Addressed / Unable to Forward.”
2012, the Court cancelled the omnibus hearing.
Sender
/
Not
On September 4,
Notice of the
cancellation was sent to the plaintiff at the Corinth address.
On September 24, 2012, Magistrate Judge Roper entered an Order
to Show Cause, advising the plaintiff of the Court’s authority to
dismiss his complaint for failure to prosecute, and requiring him
to show cause within 15 days why his case should not be dismissed
for his failure to keep the Court apprised of his current address.
The Order was mailed via certified mail to the Corinth address. An
acknowledgment of receipt was signed on September 27, 2012, and
filed on October 1, 2012, but the signature thereon is not that of
the plaintiff.
On November 13, 2012, Magistrate Judge Roper entered a Report
and Recommendation recommending dismissal of this action without
prejudice for failure to prosecute.
The plaintiff was reminded of
his right to object to the Report and Recommendation within 14
days.
A copy of the Report and Recommendation was mailed via
certified mail to the Corinth address.
The certified letter was
returned, marked “Return to Sender / Unclaimed,” in addition to the
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dates “11-16-12, 11-21, and 12-1,” and was filed by the clerk of
court on December 13, 2012.
On January 15, 2013, this Court adopted the Report and
Recommendation
prejudice.
and
dismissed
the
plaintiff’s
action
without
On January 18, 2013, the clerk of court received a
letter from the plaintiff which was docketed as a “Letter Motion
for Copies.” The letter requested that the plaintiff be allowed to
proceed with his case.
He also advised:
Since February 201_ [illegible] I’ve been incarcerated at
Alcorn County Jail with no legal assistance so I’ve lost
all my legal materials for this case. I’m asking this
court to please grant me a copy of all matters that have
been mailed to or dealing with this case.
Letter (docket entry 31), p. 1. The return address on the envelope
was “Jason Holloway #M0998 / C.M.C.F. R&C Section 4 cell #101 /
P.O. Box 88550 / Pearl, MS 39288.”
The clerk of court duly entered
the change of address the day it was received.
On January 30,
2013, the clerk forwarded copies of the Order Adopting Report and
Recommendation and Final Judgment to the plaintiff.
On February 20, 2013, the plaintiff mailed his Motion for
Reconsideration, which was received by the clerk on February 26,
2013.
In his motion, Holloway states that he sent a change of
address (i.e. the Corinth address) to the Court on January 24,
2012.
He also states that on February 16, 2012, he was “placed
back in jail at Alcorn County Jail,” and that he “never got any
mail mailed to the [Corinth] address.” Motion for Reconsideration,
4
¶ I. Holloway further states that “[t]he people I was staying with
... threw all my belongings away.
was sent to that address.”
I never even knew that any mail
Id., ¶ II.
“On Nov. 5th I got sent back
to prison and have been moved multiple times since I’ve been back
in prison. I’m still being moved from building to building.” Id.,
¶ 3.
A “motion for reconsideration” is not explicitly recognized by
the Federal Rules of Civil Procedure.
The Fifth Circuit “has
consistently
motion
stated,
however,
that
a
so
denominated,
provided that it challenges the prior judgment on the merits, will
be treated as either a motion ‘to alter or amend judgment’ under
Rule 59(e) or as a motion for ‘relief from judgment’ under Rule
60(b).”
Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d
167, 173 (5th Cir. 1990)(abrogated on other grounds by Little v.
Liquid Air Corp., 37 F.3d 1069, 1076 n.14 (5th Cir. 1994)).
Since
the plaintiff’s motion was not filed within twenty-eight days of
the Final Judgment as required under Rule 59(e), the Court will
consider the plaintiff’s motion under Rule 60(b).
A party seeking relief under Rule 60(b) must show: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3)
fraud, ... misrepresentation, or other misconduct of an opposing
party;
(4)
the
judgment
is
void;
5
(5)
the
judgment
has
been
satisfied ...; or (6) any other reason that justifies relief.
Construing the pro se plaintiff’s motion liberally, the Court finds
that, at best, he is seeking relief under clause (1) for mistake,
inadvertence, surprise or excusable neglect, or under clause (6)
for any other reason justifying relief.
Specifically addressing
these two categories of relief, the Fifth Circuit has explained:
Gross carelessness, ignorance of the rules, or ignorance
of the law are insufficient bases for 60(b)(1) relief.
A party has a duty of diligence to inquire about the
status of a case; Rule 60(b) relief will only be afforded
in “unique circumstances.” ...
As for a motion under clause (6), the movant must show
“the initial judgment to have been manifestly unjust.”
Clause (6) is a residual or catch-all provision to cover
unforeseen consequences - a means to accomplish justice
under exceptional circumstances.
Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357
(5th Cir. 1993)(citations omitted).
The broad power granted by clause (6)
purpose of relieving a party from free,
deliberate choices he has made. A party
duty to take legal steps to protect his
is not for the
calculated, and
remains under a
own interests.
United States v. O’Neil, 709 F.2d 361, 373 n.12 (5th Cir. 1983).
The plaintiff did not communicate with the Court from January
19, 2012, until January 18, 2013.
Rule 11 of the Local Uniform
Civil Rules provides that “every litigant proceeding without legal
counsel has a continuing obligation to notify the clerk of court of
address changes.”
L.U.C.R. 11.
In addition, on October 4, 2011,
and again on November 8, 2011, the Court warned the plaintiff that
failure to advise the Court of a change of address could result in
6
dismissal
of
his
case.
That
the
plaintiff
understood
the
importance of notifying the Court when his address changed is
evidenced by the notice he sent to the clerk of court on January
19, 2012.
Furthermore, the plaintiff knew that he had filed a motion to
amend his complaint on December 28, 2011.
Not only did he have a
duty to notify the Court of any change of address; he also had a
duty to contact the Court to inquire about the status of his case.
Bradley v. Woodall, 2013 WL 2629787 *2 (S.D. Miss. June 11, 2013).
He failed to make any inquiry whatsoever for approximately one
year.
The plaintiff fails to show any efforts he made to contact
the Court.
Instead, he attempts to shift responsibility for his
lack of diligence to others.
The Court finds that the plaintiff
has failed to show adequate justification for his failure to
prosecute this case, and that he has failed to demonstrate that he
is entitled to relief under Rule 60(b).
The Court also notes that this case was dismissed without
prejudice, meaning the dismissal does not bar the plaintiff from
filing a new and separate § 1983 case regarding the complained of
incidents that occurred in March and April of 2011. The applicable
statute of limitations for § 1983 cases filed in the State of
Mississippi is three years.
See Walker v. Epps, 550 F.3d 407, 415
(5th Cir. 2008).
The Court also finds that because the plaintiff is not
7
entitled to relief under Rule 60(b), his motion to amend complaint
is moot and shall be denied on that basis.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff Jason Holloway’s
motion for reconsideration (docket entry 35) of this Court’s Order
adopting
Chief
Magistrate
Judge
John
M.
Roper’s
Report
and
Recommendation and dismissing this action without prejudice is
DENIED;
FURTHER ORDERED that the plaintiff’s motion to amend complaint
(docket entry 38) is DENIED AS MOOT.
SO ORDERED, this the 19th day of September, 2013.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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