Bouknight v. Director TDCJ - CID
Filing
12
MEMORANDUM OPINION and ORDER denying petitioners motion for extension of time, construed as a motion for reconsideration of the judgment. Signed by Judge Rodney Gilstrap on 4/9/12. (ehs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DAVID ERON BOUKNIGHT, #1417761
§
VS.
§
DIRECTOR, TDCJ-CID
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CIVIL ACTION NO. 2:11cv316
MEMORANDUM OPINION AND ORDER ON PETITIONER’S MOTION
FOR EXTENSION OF TIME TO RESPOND
The above-entitled and numbered civil action was heretofore referred to a United States
Magistrate Judge. Having reviewed the petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, the Magistrate Judge issued an Order on August 12, 2011, directing Petitioner to respond
within fourteen days and show cause whether his petition should be dismissed as time-barred. See
docket entry #3. Petitioner did not respond at all. Accordingly, on September 6, 2011, the
Magistrate Judge issued a Report and Recommendation (docket entry #5) (“R&R”) that Petitioner’s
petition be dismissed without prejudice for failure to prosecute and failure to obey an order.
Petitioner still did not respond. On September 30, 2011, the District Judge then presiding1 adopted
the R&R and dismissed the case without prejudice. No further communication was received from
Petitioner until December 19, 2011, when he filed a “Motion for Discovery” seeking a copy of the
R&R, which the Court granted.
Petitioner has now filed a “Motion for a Time Extension” (docket entry #11), in which he
contends that he had been bench-warranted away from his address of record at the Texas Department
1
Judge Folsom retired from the bench in March 2012. This matter has been reassigned
to the undersigned District Judge.
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of Criminal Justice (TDCJ), was in the Gregg County Jail when the R&R issued, and never received
a copy of it. He seeks an extension of time in which to respond to the R&R or, alternatively, that
the relief sought in his original petition be granted. Because judgment has already been entered
based on the R&R, the Court construes this motion as a Motion for Reconsideration of the Judgment.
Petitioner has not stated a basis for his motion other than the general principles of due
process and access to courts. A motion for reconsideration may be made under either Federal Rule
of Civil Procedure 59(e) or 60(b). Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir.
2004). Such a motion “‘calls into question the correctness of a judgment.’” Templet v. HydroChem
Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In Re Transtexas Gas Corp., 303 F.3d 571, 581 (5th
Cir. 2002)). A Rule 59(e) motion is “not the proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the entry of judgment.” Id. at 479 (citing
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Instead, “Rule 59(e) ‘serve[s] the
narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence.’” Id. (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).
“Relief under Rule 59(e) is also appropriate when there has been an intervening change in the
controlling law.” Schiller v. Physicians Resource Grp., 342 F.3d 563, 567 (5th Cir. 2003). Altering,
amending, or reconsidering a judgment is an extraordinary remedy that courts should use sparingly.
Templet, 367 F.3d at 479 (citing Clancy v. Employers Health Ins. Co., 101 F. Supp. 2d 463, 465
(E.D. La. 2000)). If a motion for reconsideration is filed within 28 days of the judgment or order of
which the party complains, it is considered to be a Rule 59(e) motion; otherwise, it is treated as a
Rule 60(b) motion. See Shepherd, 372 F.3d at 328 n.1; Berge Helene Ltd. v. GE Oil & Gas, Inc.,
2011 WL 798204, at *2 (S.D. Tex. Mar. 1, 2011) (noting that the Fifth Circuit drew the line at 10
days in Shepherd instead of 28 days because the case was decided before the amendments to Rule
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59 took effect on December 1 2009).2 Here, judgment was entered on September 30, 2011.
Petitioner did not file his motion until March 14, 2012, exceeding the 28 day standard of Rule 59(e).
Turning to Federal Rule of Civil Procedure 60(b), that Rule reads:
On motion and just terms, the court may relieve a party or its legal representative 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)(1)-(6); Cazier v. Thaler, 2010 WL 2756765, at *1 n.1 (W.D. Tex. July 12,
2010); see also Reed v. Gallegos, 2009 WL 5216871, at *1 (S.D. Tex. Dec. 29, 2009). A Rule 60(b)
motion “must be made within a reasonable time - and for reasons (1), (2), and (3) no more than a
year after the entry of the judgment or order. . . .” Fed. R. Civ. P. 60(c)(1). A decision with respect
to a motion to reconsider pursuant to Rule 60(b) is left to the “sound discretion of the district court
and will only be reversed if there is an abuse of that discretion.” Steverson v. GlobalSantaFe Corp.,
508 F.3d 300, 303 (5th Cir. 2007) (quoting Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599,
604 (5th Cir. 1986)). Rule 60(b)(6) could be construed to apply to Petitioner’s motion.
Petitioner’s sole discernable argument is that he did not receive a copy of the R&R issued
by the Magistrate Judge recommending dismissal of his petition before the presiding District Judge
adopted it almost a month later and dismissed his case without prejudice. Therefore, he did not have
an opportunity to object or otherwise respond to the R&R.
2
Rule 59(e) was amended in 2009 to extend the time for timely filing from 10 days to
28 days. Although a Fifth Circuit case has not yet explicitly observed the change, district courts
within the Fifth Circuit have widely applied it in situations such as this. See, e.g., Alack v. Jaybar,
LLC, 2011 WL 3626687, at *2 & n.4 (E.D. La. Aug. 17, 2011) (citing Shepherd, 372 F.3d at 328
n.1).
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In the first place, Petitioner has presented nothing at all in support of his bare allegation that
he did not receive the R&R. He simply alleges in his motion that he did not. He has not submitted
any form of declaration or statement by prison unit mailroom personnel, nor even his own
declaration under penalty of perjury. He does assert that “he can provide the Court factual evidence
that would show that the mailroom at the Jester III Unit . . . not only knew where Petitioner was but
also forwarded him his personal mail, but no legal mail, for whatever reason.” Motion at 1-2
(emphasis in original). However, he has not provided such evidence, nor even described it in support
of his motion. To the extent that he simply failed to file an objection and now seeks to remedy his
failure, he does not state a basis for either de novo review in this Court nor for appellate review. See
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc); Spotts v.
United States, 613 F.3d 559, 575 (5th Cir. 2010).
Next, however, even if Petitioner did not receive a copy of the R&R in order to timely object
to it, his remedy is to seek relief of some form from the judgment on the basis of a substantive reason
for doing so. For example, the Fifth Circuit has “held that the district court can ‘rectif[ ]y [its] initial
procedural error’ in not giving notice before granting summary judgment ‘by ruling on a motion for
reconsideration.’” See J.D. Fields & Co., Inc. v. U.S. Steel Intern., Inc., 426 Fed. Appx. 271, 281
(5th Cir. 2011) (quoting Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 402 (5th
Cir.1998), cert. denied, 526 U.S. 1034, 119 S. Ct. 1286, 143 L. Ed. 2d 378, 67 (1999)). “That is, if
the party opposing the motion for summary judgment ‘is afforded an opportunity . . . to present the
court with evidence supporting [its] arguments’ in a motion for reconsideration, ‘the court’s failure
to provide an opportunity to respond is harmless error.’” Id.; see also Simmons v. Reliance Standard
Life Ins. Co. of Texas, 310 F.3d 865, 869 n.4 (5th Cir. 2002). Here, the posture is somewhat
different from the cited authorities in that there actually was no procedural error on the part of the
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Court preventing Petitioner from filing an opposition to summary judgment or a motion to dismiss.
Instead, dismissal was based on Petitioner’s undisputed failure to respond and prosecute his case.
Nonetheless, the same principle stated in J.D. Fields and the other cases above holds equally well
here, namely, that Petitioner’s recourse was to raise his substantive objections in his instant motion
for reconsideration.
Of course, his instant motion, taken as true, ostensibly provides some explanation why he
failed to respond to the R&R. He contends that he was bench-warranted away from his TDCJ
address and kept at the Gregg County Jail for a period of at least two months. Motion at 1-2. During
that time, he contends, his prison unit mailroom did not forward all of his mail to him. Id. He
further cites Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam) and
Boag v. MacDougall, 454 U.S. 364, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam) for the
propositions that (1) he is entitled an opportunity to offer proof of his claims where his pro se
petition was dismissed without allowing him to present his evidence on his claims and (2) as a pro
se litigant, his pleadings should be construed liberally. Therefore, he has in fact filed his objections
to the R&R, as adopted in a final judgment. Moreover, this Court has considered those arguments
herein, giving them the liberal construction Petitioner desired.
Notwithstanding these arguments, however, Petitioner has not explained why he never
attempted to contact the Court or the Clerk from his last such contact on July 11 and 12, 2011, when
he filed his petition and paid his filing fee for this case, respectively, and December 19, 2011, when
he filed his “Motion for Discovery”seeking a copy of the R&R. He certainly was aware that he had
filed his habeas petition and had an open case that the Court expected to proceed. By the language
in his prior Motion for Discovery, he even suggested that he was aware of the R&R (arguing that his
temporary transfer to the Gregg County Jail made it “impossible for him to respond to the Court and
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the Magistrate Judge’s findings in a timely fashion.”). Motion for Discovery (docket entry #9) at 1.
Nonetheless, he never even sought to advise the Court of his whereabouts or request an extension
of time in which to file a response or even a broader request for a temporary stay until his bench
warrant was resolved. For that reason, he still failed to prosecute his case by not proactively keeping
the Court informed of his whereabouts instead of passively awaiting his return to TDCJ. His
arguments in his Motion for Reconsideration therefore fail.
Furthermore, he still has not addressed the underlying issue leading to the R&R. The
Magistrate Judge found a basis for requiring him to show cause why his petition should not be
dismissed as time-barred. See Order at docket entry #3. Petitioner appears to have either forgotten
or ignored this fundamental requirement that led to the issuance of the R&R in the first instance.
.
Petitioner is reminded that the Court’s dismissal of his habeas petition was without prejudice,
meaning he may attempt to re-file his claims. However, he is advised that he must be prepared to
immediately show cause why he is not subject to the time-bar as required above. It is accordingly
ORDERED that Petitioner’s Motion for a Time Extension (docket entry #11) to respond to
the Magistrate Judge’s Report and Recommendation, construed as a Motion for Reconsideration of
the Judgment, is hereby DENIED.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 9th day of April, 2012.
____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE
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