IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DUNCAN J. McNEIL §

§

Petitioner, §

§

VS. § NO. 3-05-CV-1284-B

§

UNITED STATES OF AMERICA, §

ET AL. §

§

Respondents. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Duncan J. McNeil, a prisoner in Spokane, Washington, has filed an ex parte

motion to modify, alter, or amend the findings of the magistrate judge and the August 22, 2005 order

dismissing this case without prejudice for failing to pay the statutory filing fee. For the reasons

stated herein, the motion should be denied.

I.

This is an unspecified civil action brought against the United States of America and its

officers and agencies, including the district and bankruptcy courts for the Northern District of Texas,

the U.S. Marshal's Service, the FBI, and the IRS, to compel respondents "to perform [their] duties."

Attached to petitioner's complaint is a stipulated order on liability and damages entered by a federal

court in the Eastern District of Washington. Although his written submissions are difficult to

decipher, it appears that petitioner wants this court and the federal agencies named in his complaint

to enforce a foreign judgment against his former employer. Petitioner did not pay the statutory filing

 

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1

 At least five prior civil actions filed by petitioner were dismissed as frivolous or malicious. See McNeil v.

Spokane County Jail, No. 04-371-AAM (E.D. Wash. Nov. 9, 2004); McNeil v. Gregoire, No. 03-372-AAM (E.D. Wash.

Nov. 9, 2004); McNeil v. Miller, No. 04-378-AAM (E.D. Wash. Nov. 9, 2004); McNeil v. Tighe, No. 04-379-AAM (E.D.

Wash. Nov. 9, 2004); McNeil v. Williams, No. 04-380-AAM (E.D. Wash. Nov. 9, 2004). In addition, petitioner has been

deemed a "vexatious litigant" in the Eastern District of Washington, the United States Bankruptcy Court for the Central

District of California, and the Spokane County Superior Court. See McNeil v. Brandt, No. C05-1043-RSL (W.D. Wash.

Jun. 14, 2005). 

fee when he tendered his complaint to the district clerk. Instead, he sought leave to proceed in forma

pauperis.

Because petitioner was allowed to proceed in forma pauperis in at least three prior civil

actions that were dismissed as frivolous, malicious, or for failure to state a claim,1

 he cannot proceed

in forma pauperis absent a showing of "imminent danger of serious physical injury." See 28 U.S.C.

§ 1915(g). No such showing was made by petitioner in his original complaint. Therefore, the court

ordered him to pay the $250.00 statutory filing fee by August 18, 2005. See Order, 7/19/05. When

petitioner failed to comply with that order, the case was dismissed without prejudice. See Order,

8/22/05.

Petitioner now asks the court to modify, alter, or amend the findings of the magistrate judge

and the order of dismissal based on new allegations that he is "under imminent danger of serious

physical injury." Alternatively, petitioner seeks relief under Fed. R. Civ. P. 60(b). 

II.

Fed. R. Civ. P. 59 authorizes a court to amend or alter a judgment in a non-jury case "for any

of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of

the United States." A district court enjoys considerable discretion in granting or denying such a

motion. See Edward H. Bohlin Co. v. Banning Co., Inc., 6 F.3d 350, 353 (5th Cir. 1993). However,

amending or altering a judgment is an extraordinary remedy which should be used sparingly. A Rule

59 motion may not be used to relitigate old matters, raise arguments, or present evidence that could

 

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2

 The court notes that petitioner's original complaint suffered from the same deficiency. 

have been raised prior to entry of the judgment. See Brewer v. Hill, No. 3-00-CV-2421-H, 2001 WL

123987 at *1 (N.D. Tex. Jan. 12, 2001) (Kaplan, J.), citing 11 C. Wright, A. Miller & M. Kane,

Federal Practice and Procedure § 2810.1 at 127-28 (2d ed. 1995). Similarly, a Rule 60(b) motion

for relief from judgment should be granted only in "exceptional circumstances." See Liljeberg v.

Health Services Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 2204, 100 L.Ed.2d 855

(1988), citing Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950).

Petitioner alleges that he is "under imminent danger of serious physical injury" due to the

conditions of his confinement. More particularly, petitioner claims that Spokane jail officials have

denied him access to the law library, withheld certain orders of this court, and transferred him to

another detention facility where he may be assaulted by other inmates. Petitioner further alleges that

he has been denied unspecified medications and medical treatment in retaliation for filing this suit.

Although the risk of attack by other inmates and the denial of medical care may, under certain

circumstances, constitute an "imminent danger of serious physical injury," petitioner does not allege

any facts to support his conclusory assertions.2 Absent such facts, the court is unable to conclude

that petitioner meets the requirements of the PLRA.

RECOMMENDATION

Petitioner's ex parte motion to modify, alter, or amend the findings of the magistrate judge

and the August 22, 2005 order of dismissal should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

 

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conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: September 6, 2005.

 

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