Fountain v. Livingston

Filing 191

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION OF THE U. S. MAGISTRATE JUDGE AND DENYING MOTION FOR RELIEF FROM JUDGMENT. This denial is without prejudice to Fountain's right to pursue his claim of exposure to excessive heat in cause no. 6:15cv100. Signed by District Judge Ron Clark on 12/12/17. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
FREDDIE FOUNTAIN

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v.

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BRAD LIVINGSTON

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CIVIL ACTION NO. 6:14cv268

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING MOTION FOR RELIEF FROM JUDGMENT
The Plaintiff Freddie Fountain, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights during his confinement
in the Texas Department of Criminal Justice, Correctional Institutions Division. This Court ordered
that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
Fountain sued the Executive Director of the Texas Department of Criminal Justice
complaining of excessive heat. The lawsuit was dismissed as duplicative on April 17, because
Fountain had filed another lawsuit in the Court complaining of a number of conditions of
confinement including excessive heat, and the Court determined that Fountain should proceed on
all of his conditions of confinement claims in one case, rather than splitting up his claims. See
Fountain v. Rupert, et al., civil action no. 6:15cv100. Fountain appealed this dismissal, but moved
to dismiss the appeal voluntarily after his motion for leave to proceed in forma pauperis was denied
under 28 U.S.C. §1915(g).
On September 27. 2017, Fountain filed a motion for relief from judgment, arguing that his
excessive heat claims in cause no. 6:15cv100 were brought against the wardens while his claims in
the present case were brought against the Executive Director. He did not explain why he did not
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name the Executive Director as a defendant concerning his heat claims in cause no. 6:15cv100,
particularly given the fact that the Executive Director is named as a Defendant in that case in
relation to other claims.
After review of the pleadings, the Magistrate Judge issued a Report recommending that
Fountain’s motion for relief from judgment be denied. The Magistrate Judge set out the standards
governing Rule 60(b) motions and determined that Fountain did not meet any of these standards.
Fountain offered no reason why he should be allowed to pursue his claims of exposure to excessive
heat in two separate lawsuits.
In his objections to the Magistrate Judge’s Report, Fountain states first that the Defendants
did not file a pleading in response to his motion for relief from judgment. Thus, he concludes that
the Court is “practicing law from the bench” and “will automatically rule against Fountain now on
every issue at every stage no matter how wrong or unjust.” He also asks that the Court “set down
[its] hatred towards Fountain for one moment and give his pleadings proper review.” This
contention is patently without merit.
Next. Fountain argues that the Magistrate Judge is “mistaken, intentionally.” He states he
could not have brought his heat-related claims in cause no. 6:15cv100 at the time he filed his last
amended complaint in that case because those claims would then have been duplicative. The
Magistrate Judge correctly determined that Fountain should be allowed to litigate his claims one
time and that the best way to permit this was to allow Fountain to go forward with his lawsuit
challenging a number of conditions of his confinement, including exposure to excessive heat. In this
way, Fountain’s claims can be resolved in a single case rather than multiple piecemeal ones.
Fountain also has shown no basis for his requests to reopen and consolidate this case or for
appointment of counsel. The Magistrate Judge correctly determined that Fountain did not meet any
of the criteria for Rule 60(b) relief. See Pryor v. U.S. Postal Service, 769 F.2d 281, 287 (5th Cir.
1985). His objections are without merit.

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The Court has conducted a careful de novo review of the pleadings in this case, including
the Plaintiff’s motion for relief from judgment, the Report of the Magistrate Judge, and the
Plaintiff’s objections thereto. Upon such de novo review, the Court has concluded that the Report
of the Magistrate Judge is correct and that the Plaintiff’s objections are without merit. It is
accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 188) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s motion for relief from judgment (docket no. 187) is
DENIED. Fed. R. Civ. P. 60(b). This denial is without prejudice to Fountain’s right to pursue his
claim of exposure to excessive heat in cause no. 6:15cv100.
So ORDERED and SIGNED this 12 day of December, 2017.

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Ron Clark, United States District Judge

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