Oliver v. Gunnels et al

Filing 37

ORDER denying 36 MOTION for Relief from Judgment.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TERRANCE L. OLIVER,
TDCJ-CID N0.739573,
Plaintiff,
V.

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§
§

CIVIL ACTION NO. H-11-1445
§

WARDEN R. GUNNELS, et al.,
Defendants.

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§

ORDER
On August 30, 2011, the Court dismissed plaintiff Terrance L.
Oliver' s civil rights complaint as frivolous pursuant 28 U. S.C.
1915(e) (2)(B).

(Docket Entry No.32).

On March 9, 2012, plaintiff

filed a "Motion for Relief from Judgment," complaining about the
payment of the filing fee in this case.

(Docket Entry No.36).

Plaintiff contends that the Court "is not supposed to grant a
prisoner leave to proceed i n forma p a u p e r i s if it concludes the
claims do not state a claim upon which relief may be granted, does
not state a claim under 42 USCA-SEC 1983 or is patently frivolous."

A district court may relieve a party from final judgment,
order, or proceeding under Rule 60(b) of the Federal Rules of Civil
Procedure on the basis of (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 adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; or (6) any

other reason justifying relief from the operation of the judgment."
FED. R. CIV. P. 60(b).

Plaintiff does not indicate which provision

of Rule 60(b) is applicable to the present motion.

Liberally

construing the motion, the Court presumes that he seeks relief
under subsection (6)--any other reason justifying relief.
Plaintiff filed the present case in the United States District
(Docket Entry No.1).

Court for the Eastern District of Texas.

The

Eastern District Court granted plaintiff's application to proceed
as a pauper (Docket Entry No.7) and later dismissed the complaint
without prejudice on plaintiff' s motion.

(Docket Entry No. 17) .

The case was transferred to this Court, where plaintiff was ordered
to advise the Court whether he intended to proceed with this case.
(Docket Entry

No.29).

After

the

Court

received

plaintif ffs

response, the Court ordered the case to re-opened and funds be
withdrawn from plaintiff's TDCJ inmate trust fund account pursuant
to the Order granting his application to proceed as a pauper.
(Docket Entry

No. 31) .

screening of plaintiff's
frivolous.

Thereafter,

this

Court

completed

its

pleadings and dismissed the case as

(Docket Entry No.32).

Rule 60(b) (6) is commonly referred to as a "grand reservoir of
equitable power to do justice"; the rule, however, "is only invoked
in 'extraordinary circumstances.'"

Rocha v. Thaler, 619 F.3d 387,

400 (5th Cir. 2010) (quoting Williams v. Thaler, 602 F.3d 291, 311
(5th Cir. 2010).

Plaintiff, however, fails to show that such

circumstances exist in this case.

By law, neither this Court nor

the Eastern District Court were required to complete screening of
plaintiff's pleadings before granting his application to proceed as
a pauper. Section 1915, entitled, "Proceedings in forma pauperis, "
requires the Court to determine whether the inmate is qualified to
proceed in f o r m a pauperis; it also authorizes the Court to dismiss
the complaint at any time, regardless of whether any filing fee or
any portion thereof has been paid, if the Court determines that the
action is frivolous, malicious, or fails to state a claim upon
which relief may be granted.

28 U. S.C. §I915 (a)(2); (e)(2)(B);'

See also Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).
Plaintiff was cautioned in the Order granting his motion to proceed
as a pauper that " [tlhe granting of the motion does not relieve the
Plaintiff of the responsibility of paying the $350 filing fee or

1 The pertinent provisions of the Prison Litigation Reform Act of 1996,
provide the following:
(b)(l) Notwithstanding subsection (a), if a prisoner brings a
civil action or files an appeal i n forma p a u p e r i s , the prisoner
shall be required to pay the full amount of a filing fee. The
court shall assess and when funds exist, collect as a partial
payment of any court fees required by law.

(e)(2)Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any time
if the court determines that -

(A) the allegation of poverty is untrue; or
(B) the action or appeal(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or
(iii)seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. 5 1915 (b)(1); (e)(2)(B).

any partial fees connected therewith, unless and until the Court
directs otherwise, regardless of the disposition of the case."
(Docket Entry No.7).
Because plaintiff's

motion is without legal merit and his

claim is not extraordinary, plaintiff fails to show his entitlement
to relief under Rule 60(b) in this case.

Accordingly, his Motion

for Relief from Judgment (Docket Entry No.36) is DENIED.

w 2/

The Clerk will provide a copy of this order to the parties.
Siqned at Houston, Texas, on

UNITED S~&'ES DISTRICT JUDGE

, 2012.