IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40990

Summary Calendar

WILLIAM DEXTER WHITE,

Plaintiff-Appellant

v.

RONALD C. FOX; ROBERT E. TAYLOR, Captain; CEILAI RNC OKEYE; 

OWEN MURRY, University of Texas Medical Branch, Medical Director; 

STEVEN SMOCK, Gulf Coast Cluster Practice Manager; KAMILAH V. 

VAUGH; GARRY C. CUMBY; SHALETON L. COOPER; KEITH W. MAYES; 

HOWARD K. NIX; V. DODSON; J. O'GUINN; SUSAN BALLIE, 

Psychotherapist; B. HORN, Assistant Warden; HERMAN WESTON, JR., 

Assistant Warden; J. W. MOSSBARGER, Assistant Warden; A. VELASQUEZ, 

Senior Warden; FRANK RODRIQUEZ, Major; WILLIAM DUGGER, Captain; 

RUBY R. KNOOT, Captain; MICHAEL GREEDS, Captain; ADRIAN 

BUSTINZA, Captain; JEFFERY NEWMAN, Sergeant; UNIDENTIFIED 

BOATMAN, Sergeant,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:05-CV-26

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2014

Lyle W. Cayce

Clerk

 

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William Dexter White, Texas prisoner # 545599, proceeding pro se and 

in forma pauperis, appeals the district court’s dismissal of his 42 U.S.C. § 1983 

complaint following a jury verdict. White originally filed suit alleging, inter 

alia, that Major Ronald C. Fox, a prison official in the Michael Unit, located in 

the Eastern District of Texas, along with several employees based in the 

Darrington Unit, located in the Southern District of Texas, violated his Eighth 

Amendment rights by failing to protect him from an assault that took place in 

the Darrington Unit shortly after White was transferred there. Specifically, 

White claims that Fox deliberately endangered his life by telling another 

inmate that White was a “snitch” before his transfer to the Darrington Unit, 

thereby making him a target amongst the general population. White claims 

that the prison employees in the Darrington Unit ignored his pleas for help or 

otherwise failed to protect him from assault.1 The district court severed and

transferred White’s claims arising from events that occurred in the Darrington 

Unit to the United States District Court for the Southern District of Texas, and 

White has since filed several motions attempting to consolidate the claims, 

which the district court has denied.

This court has issued two prior decisions involving the instant 

proceeding. See White v. Fox, 470 F. App’x 214, *214-23 (5th Cir. 2012); White 

v. Fox, 294 F. App’x 955, *956-63 (5th Cir. 2008). In the most recent opinion, 

this court affirmed in part and reversed and remanded in part the district 

court’s grant of summary judgment in favor of the defendants. White, 470 F. 

App’x at *214-23. Concluding, inter alia, that there was a genuine dispute of 

material fact regarding White’s deliberate indifference claim against Fox, this 

court reversed and remanded for further proceedings. Id. at *223. After a two1 For example, White claims that several members of the Darrington Unit 

Classification Committee refused to restrict his housing such that he would be isolated from 

African-American inmates, a racial group with whom White claims to have had several 

violent encounters.

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day jury trial limited to White’s claims against Fox, the jury reached a verdict 

that Fox did not act with deliberate indifference. Following the district court’s 

dismissal of his complaint, White moved for a new trial. The district court 

denied his motion for a new trial.

White now appeals the dismissal of his complaint and the denial of his 

motion for a new trial. He argues that the district court abused its discretion 

by failing to allow him to withdraw his consent to the exercise of jurisdiction 

by the magistrate judge (“MJ”), the district court abused its discretion by 

denying his motion to recuse the MJ as the presiding judge, and the MJ’s denial 

of his motion seeking sanctions against the defendants was an abuse of 

discretion. He also argues that the MJ’s refusal to serve defendants in 

connection with his failure-to-protect claims relating to events in the 

Darrington Unit—where he was assaulted after being transferred—was an 

abuse of discretion because res judicata will bar him from bringing suit against 

the Darrington defendants in a separate case. Finally, he contends that it was 

an abuse of discretion for the MJ to deny his motion for a new trial due to Fox’s 

alleged perjury and fraudulent concealment of the perjury. White has also filed 

a motion to strike the brief filed by the Appellee. 

The record indicates that White’s consent to proceed before the MJ was 

knowing and voluntary. Therefore, because White has shown neither good 

cause nor extraordinary circumstances, the district court did not abuse its 

discretion by denying White’s motion to revoke his consent to proceed before 

the MJ. See 28 U.S.C. § 636(c); Carter v. Sea Land Services, Inc., 816 F.2d 

1018, 1020-21 (5th Cir. 1987). White’s argument that the MJ should have been 

recused also lacks merit, as his allegations of bias are conclusory and based 

solely upon the MJ’s adverse rulings. See 28 U.S.C. § 455(a),(b); Liteky v. 

United States, 510 U.S. 540, 555 (1994). The denial of his motion to recuse the 

MJ as the presiding judge therefore was not an abuse of discretion. See Brown 

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v. Oil States Skagit Smatco, 664 F.3d 71, 80 (5th Cir. 2011); Watson v. U.S. ex 

rel. Lerma, 285 F. App'x 140, 142 (5th Cir. 2008).

White’s argument that sanctions should have been awarded pursuant to 

Rule 11 of the Federal Rules of Civil Procedure, as there were factual 

inaccuracies in the defendants’ pleadings and the defendants willfully failed to 

locate a named defendant, does not establish that the MJ’s ruling on this issue 

constituted an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 

U.S. 384, 403-05 (1990). Once defendants learned of the factually inaccurate 

paragraph in their pleadings, they corrected the error and filed an amended 

pleading. Because the MJ provided a reasonable explanation for the 

oversight—clerical error—the district court did not abuse its discretion by 

denying White’s motion for sanctions due to factual inaccuracies in defendants’ 

pleadings. See McCrimmon v. Wells Fargo Bank, N.A., 516 F. App’x 372, *376 

(5th Cir. 2013); Friends for Am. Free Enterprise Ass’n v. Wal-Mart Stores, Inc, 

284 F.3d 575, 577-78 (5th Cir. 2002) (“Generally, an abuse of discretion only 

occurs where no reasonable person could take the view adopted by the trial 

court.”) (internal quotation marks omitted).

Regarding his argument that he should have been awarded sanctions 

because the defendants failed to locate a named defendant, White fails to 

establish that the defendants acted “to harass, cause unnecessary delay, or 

needlessly increase the cost of litigation.” See FED. R. CIV. P. 11(b)(1). 

Therefore, the district court’s denial of White’s motion for sanctions due to 

failure to locate a defendant was not an abuse of discretion. See Cooter & Gell, 

496 U.S. at 403-05; Friends for Am. Free Enterprise Ass’n, 284 F.3d at 577-78.

White’s argument concerning the MJ’s denial of his requests to serve 

additional defendants relating to his claims at the Darrington Unit also lacks 

merit, as the district court acted within its discretion to sever the claims

against these defendants, and White’s fear of res judicata is unfounded. Under 

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res judicata, or claim preclusion, parties are prohibited “from raising any claim 

or defense in [a] later action that was or could have been raised in support of 

or in opposition to the cause of action asserted in [a] prior action.” United 

States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). Claim preclusion is 

appropriate where four conditions are met: (1) the parties in a later action must

be identical to (or in privity with) the parties in a prior action; (2) the judgment 

in the prior action must have been rendered by a court of competent 

jurisdiction; (3) the prior action must have concluded with a final judgment on 

the merits; and (4) the same claim or cause of action must be involved in both 

suits. Shanbaum, 10 F.3d at 310; Eubanks v. Federal Deposit Ins. Corp., 977 

F.2d 166, 169 (5th Cir. 1992). 

A non-party is in privity with a party for res judicata purposes in three 

narrowly-defined circumstances: (1) if he has succeeded to the party’s interest 

in property; (2) if he controlled the prior litigation; or (3) if the non-party’s 

interests were adequately represented by a party to the original suit. Latham 

v. Wells Fargo Bank, N.A., 896 F.2d 979, 983 (5th Cir. 1990); Dilworth v. Vance, 

95 F.3d 50, *1 (5th Cir. 1996). A non-party is adequately represented “where 

a party in the prior suit is so closely aligned to her interests as to be her virtual 

representative.” Eubanks, 977 F.2d at 170. This requires “more than a 

showing of parallel interests—it is not enough that the non-party may be 

interested in the same questions or proving the same facts.” Id. 

Here, White’s claims against the Darrington defendants will not be 

barred by res judicata, as the Darrington defendants are not a party to nor in 

privity with a party to the instant litigation. The Darrington defendants have 

not succeeded to Fox’s interest in property, controlled the instant litigation, 

nor been adequately represented in the instant litigation. See Eubanks, 977 

F.2d at 170; Latham, 896 F.2d at 983. White’s claims against the Darrington 

defendants have been severed from the litigation entirely. The two-day jury 

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trial below addressed only White’s claims against Fox. The Darrington 

defendants’ interests were never properly placed before the court, nor has any 

party to this suit acted as their virtual representative. Thus, White will not be 

precluded by res judicata from filing suit against the Darrington defendants in 

the Southern District. The district court previously determined that White’s 

claims against the Darrington defendants, all of which concern events 

occurring in the Darrington Unit in the Southern District, are distinct from his 

claims against Fox, which concern events that took place in the Michael Unit 

in the Eastern District.2 Accordingly, the district court did not abuse its 

discretion by denying White’s requests to serve the Darrington defendants in 

the instant litigation. See Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 

1998) (finding no abuse of discretion where a magistrate judge from the 

Eastern District of Texas severed inmate plaintiff’s claims arising out of events 

that occurred at a separate prison unit located in the Southern District) 

(internal quotation marks omitted).

Finally, White’s arguments regarding the denial of his motion for a new 

trial also lack merit. Because White argues that he is entitled to a new trial 

based on Fox’s alleged perjury and fraudulent concealment of the perjury, his 

motion below implicates two provisions of the Federal Rules of Civil Procedure:

Rule 59(a), which provides for a motion for a new trial following a jury trial, 

and Rule 60(b)(3), which provides for relief from a judgment due to fraud. See

FED. R. CIV. P. 59(a); 60(b)(3). White is not entitled to relief under either 

provision. Because White is not relying upon new matters that arose postjudgment, the MJ’s denial of relief pursuant to Rule 59(a) was not an abuse of 

discretion. See Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986); 

2 Based on this distinction, the district court concluded that the severance of the 

Darrington claims was proper. White does not appeal the severance order but, rather, the 

district court’s denial of his requests to serve the Darrington defendants.

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Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 164 (5th Cir. 

1990). Regarding Rule 60(b)(3), White’s conclusory, speculative allegations of 

fraud do not establish that the MJ’s denial of a new trial on this basis was an 

abuse of discretion. See Bailey v. Cain, 609 F.3d 763, 767 (5th Cir. 2010); Diaz 

v. Methodist Hosp. 46 F.3d 492, 497 (5th Cir. 1995); Longden v. Sunderman, 

979 F.2d 1095, 1103 (5th Cir. 1992) (“A Rule 60(b)(3) assertion [of fraud] must 

be proved by clear and convincing evidence, and the conduct complained of 

must be such as to prevent the losing party from fully and fairly presenting its 

case or defense.”).

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. The motion to strike the Appellee’s brief is DENIED.

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