Winding v. Sanders et al

Filing 82

ORDER denying 79 Motion to Reopen Case; denying 79 Motion to Consolidate Cases; adopting Report and Recommendations re 80 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 8/9/2013 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JAMES WINDING,

#K8115

PLAINTIFF

VS.

CIVIL ACTION NO. 5:12-cv-88(DCB)(JMR)

LILLIE BLACKMON SANDERS;
ADAMS COUNTY JAIL; CRAIG GODBOLD;
KEVIN COLBERT; NATCHEZ POLICE DEPARTMENT;
CHRISTOPHER EPPS; and RONNIE HARPER

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This

cause

is

before

the

Court

on

the

plaintiff

James

Winding’s Motion to Reopen Case and to Consolidate Cases (docket
entry

79),

on

the

Report

and

Recommendation

filed

by

Chief

Magistrate Judge John M. Roper (docket entry 80), and on the
objections thereto filed by the plaintiff (docket entry 81).
Having carefully considered the same, and being fully advised in
the premises, the Court finds as follows:
The Final Judgment dismissing this case with prejudice was
entered on March 6, 2013.

The plaintiff did not file a notice of

appeal within 30 days of the entry of judgment, nor did he timely
file a Fed.R.Civ.P. 59(e) motion within 28 days, which would have
suspended the time for filing a notice of appeal.

Instead, he

filed his present motion to reopen the case on April 24, 2013, some
49 days after entry of judgment. On May 24, 2013, Magistrate Judge
Roper entered his Report and Recommendation, recommending denial of
the motion to reopen and the motion to consolidate.
filed objections on June 4, 2013.

The plaintiff

Because he failed to file a motion to reopen within 28 days
from the date of entry of judgment, Winding’s motion must be
construed as a Rule 60(b) motion, which provides that a district
court may relieve a party from a final judgment for reasons that
include (1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence; (3) fraud, misrepresentation, or
other misconduct of an adverse party; (4) a void judgment; (5) a
satisfied, released, or discharged judgment; or (6) any other
reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b).

A motion filed pursuant to Rule 60(b)(6)

requires a showing of “extraordinary circumstances.”

Hess v.

Cockrell, 281 F.3d 212, 216 (5th Cir. 2002).
Winding

offers

no

argument

that

his

postjudgment

motion

presents a meritorious basis for relief under Rule 6(b)(1)-(5).
Nor

does

he

show

“any

other

reason

justifying

“exceptional circumstances” under Rule 6(b)(6).
Winding’s motion is untimely.

or

Furthermore,

Rule 60(c) requires that a Rule

60(b)(6) motion “be made within a reasonable time.”
60(c)(1).

relief”

Fed.R.Civ.P.

What constitutes a “reasonable time” depends on the

facts of the case, “taking into consideration the interest in
finality, the reason for delay, the practical ability of the
litigant to learn earlier of the grounds relied upon, and the
prejudice to other parties.”

Travelers Ins. Co. v. Liljeberg

Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)(quoting

2

Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)).

The

plaintiff gives no reason for his delay, nor does he allege an
inability to assert his grounds for relief earlier (in fact, he
raised substantially the same grounds for relief prior to entry of
the final judgment).
When the moving party has failed to appeal the judgment
challenged in the Rule 60(b) motion, “the usual time period for
direct appeal presumptively delimits, as a matter of law, the
‘reasonable time’ contemplated by Rule 60(b).”

Pryor v. U.S.

Postal Serv., 769 F.2d 281, 288 (5th Cir. 1985).

“In such cases,

a Rule 60(b) motion filed after the time for appeal has lapsed is
untimely unless the moving party shows good cause for the later
filing.”

Groden v. Allen, 2009 WL 1437834, *6 (N.D. Tex., May 22,

2009)(citing Pryor, 769 F.2d at 288). The determination of whether
there is good cause is made by the court “on a case-by-case basis.”
In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004).
‘good

cause’

under

any

particular

necessarily fact-sensitive.”

set

of

“What amounts to
circumstances

is

Lindsey v. U.S. R.R. Retirement Bd.,

101 F.3d 444, 446 (5th Cir. 1996)(discussing good cause in the
context

of

Fed.R.Civ.P.

4(m)).

In

this

case,

however,

the

plaintiff makes no allegations whatsoever concerning good cause.
Rule

60(b)(6)

voluntarily,

is

not

deliberately,

available

and

freely

when
chosen

the
not

movant
to

Ackermann v. United States, 340 U.S. 193, 199-200 (1950).

3

has

appeal.
A Rule

60(b) motion “is not a substitute for appeal, and it is ordinarily
not available to one who fails to appeal.”
F.2d 734, 737 (5th Cir. 1977).

Fackelman v. Bell, 564

In Klapprott v. United States, the

Supreme Court found that Rule 60(b)(6) could be available despite
a failure to appeal if “extraordinary circumstances” could be
shown.

335 U.S. 601, 615 (1949).

However, Winding has failed to

make a showing of good cause, and has therefore failed to show
“extraordinary circumstances.” See Groden, 2009 WL 1437834, *7 n.4
(“Because [petitioner] has not shown good cause for filing his Rule
60(b) motion outside the time for appeal, he has necessarily not
made the more difficult showing of ‘extraordinary circumstances’
within the meaning of Klapprott
60(b)(6).”).

The

to obtain relief under Rule

plaintiff himself is responsible for the delay.

He made no attempt to file his motion until well after the time for
appeal had expired - even though he knew the factual basis for his
motion

before

the

Court

entered

the

judgment

against

him;

therefore, the motion is untimely.
For the foregoing reasons, the plaintiff’s motion shall be
denied.

It therefore follows that the case cannot be consolidated

(the Court also notes that the case with which the plaintiff seeks
consolidation was itself closed on May 10, 2013).
Accordingly,
IT IS HEREBY ORDERED AS FOLLOWS:
The Report and Recommendation filed by Chief Magistrate Judge

4

John M. Roper (docket entry 80) is ADOPTED as the findings of this
Court;
The plaintiff James Winding’s Motion to Reopen Case and to
Consolidate Cases (docket entry 79) is DENIED.
SO ORDERED, this the 9th day of August, 2013.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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