IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONALD ROGER BURR §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-1539-D 

§

BILL HILL, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Donald Roger Burr, appearing pro se, has filed a pleading entitled "Appeal,

Objections to Court's Dismissal With Prejudice of the Above Cause." The court should treat this

pleading as a Rule 60(b) motion and deny the relief requested.

I.

The procedural history of this case is set out in Burr v. Hill, No. 3-05-CV-1539-D, 2006 WL

3883900 (N.D. Tex. Dec. 14, 2006). Succinctly stated, plaintiff sued various prosecutors, law

enforcement officers, private attorneys, and jail employees for civil rights violations related to his

1998 indictment and conviction for aggravated sexual assault of a child and subsequent arrest for

failure to register as a sex offender. On initial screening of his pro se complaint, the only claim that

survived summary dismissal was plaintiff's excessive force claim against three City of Grand Prairie

detention officers. See Burr v. Hill, No. 3-05-CV-1539-D, 2005 WL 2291891 (N.D. Tex. Sept. 16,

2005), rec. adopted by Order, 10/18/05. Defendants answered those allegations, raising the

affirmative defense of qualified immunity. Thereafter, the court twice ordered plaintiff to file a

Rule 7(a) reply to the immunity defense. Plaintiff failed to comply with these orders. Instead, he

 

 Case 3:05-cv-01539-D-BD Document 96 Filed 02/15/07 Page 1 of 5 PageID 468
asked the court to appoint a lawyer to represent him and to stay the proceedings until he recovered

from injuries sustained in an automobile accident. The court declined to stay the case, but appointed

Renee L. Chafitz, an attorney with the law firm of Strasburger & Price, to represent plaintiff.

Almost immediately, Chafitz reported that plaintiff had not responded to her letters and failed to

return numerous telephone calls. Chafitz later learned that plaintiff, who had been living with his

sister-in-law in South Carolina, moved without notifying her of his new address. The inability to

communicate with her client forced Chafitz to file a motion to withdraw, which the court granted

on October 23, 2006. While represented by counsel, plaintiff failed to answer written interrogatories

and document requests. He also failed to appear for a court-ordered deposition on November 9,

2006. Frustrated by their inability to conduct discovery or prepare for trial, defendants filed a

motion to strike plaintiff's pleadings and to dismiss this case with prejudice. In granting the motion,

the court wrote:

Plaintiff has been warned repeatedly throughout this litigation of the

need to cooperate with this attorney and to comply with court orders.

At plaintiff's request, the court appointed a lawyer to represent him,

only to have that attorney withdraw because she could not locate her

client. Plaintiff was well-aware of his obligation to notify the court

and opposing counsel of his current address and the consequences of

failing to do so. . . . Without this information, the court cannot

communicate with plaintiff and this litigation cannot proceed. In

addition, plaintiff has not answered written discovery, ignored a court

order requiring him to appear for deposition, and did not file a

response to the instant motion to dismiss. Such conduct caps a

demonstrated history of intransigence and delay. 

Burr, 2006 WL 3883900 at *3 (internal citations and quotations omitted). A final judgment was

entered on January 9, 2007.

On February 13, 2007, more than 30 days after entry of the judgment, plaintiff filed the

instant motion objecting to the dismissal of his case. In support of his motion, plaintiff alleges that

he has been unable to prosecute this action or comply with his discovery obligations due to the

 

 Case 3:05-cv-01539-D-BD Document 96 Filed 02/15/07 Page 2 of 5 PageID 469
1

 Alternatively, plaintiff states that he wants to appeal the judgment and proceed in forma pauperis on appeal.

Even if the court treats plaintiff's motion as a notice of appeal, such an appeal is untimely. A notice of appeal in a civil

action must be filed with the district clerk "within 30 days after the judgment or order appealed from is entered." FED.

R. APP. P. 4(a)(1)(A). The judgment in this case was entered on January 9, 2007. However, plaintiff did not file the

instant motion until February 13, 2007--more than 30 days later. Although the certificate of service is dated February

7, 2007, plaintiff cannot rely on the "mailbox rule" because he is not incarcerated. See United States v. Kuebler, No.

99-60713, 2000 WL 554665 at *1 (5th Cir. Apr. 13, 2000) ("mailbox rule" does not apply to non-prisoner seeking to

perfect appeal).

"extreme nature" of the injuries he sustained in an automobile accident in November 2005. Plaintiff

accuses his former attorney of "show[ing] no interest in [his] current medical problems only in

rushing this case forward." (Plf. Mot. at 3). As relief, plaintiff seeks an order vacating the judgment

of dismissal, reinstating this case on the docket, and staying the action indefinitely.1

II.

Because plaintiff filed this motion more than 10 days after the dismissal of his case, it must

be treated as a Rule 60(b) motion for relief from final judgment. See Dial One of the Mid-South, Inc.

v. BellSouth Telecommunications, Inc., 401 F.3d 603, 606 (5th Cir. 2005) Under Rule 60(b), a

district court may grant relief from a final judgment for: (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct

of an adverse party; (4) a void judgment; or (5) a judgment that has been reversed or otherwise

vacated. FED.R.CIV.P. 60(b)(1)-(5). The court also may set aside a judgment for "any other reason

justifying relief from the operation of the judgment." FED. R. CIV. P. 60(b)(6). However, relief

under this "catch-all" provision is available "only if extraordinary circumstances are present." Hess

v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002), quoting Batts v. Tow-Motor Forklift Co., 66 F.3d

743, 747 (5th Cir. 1995), cert. denied, 116 S.Ct. 1851 (1996). The burden of establishing at least

one of the Rule 60(b) requirements is on the movant, and a determination of whether that burden has

been met rests with the discretion of the court. Lavespere v. Niagra Machinery & Tool Works, Inc.,

 

 Case 3:05-cv-01539-D-BD Document 96 Filed 02/15/07 Page 3 of 5 PageID 470
910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds, Little v. Liquid Air Corp., 37 F.3d

1069, 1075 n.14 (5th Cir. 1994) (en banc).

Only two provisions of Rule 60(b) are even remotely implicated by plaintiff's motion. First,

plaintiff appears to argue that his delay and intransigence should be "excused" because of his

medical condition. However, the Supreme Court has held that, at least for purposes of Rule

60(b)(1), "excusable neglect" encompasses situations in which the failure to comply with a court

order or deadline is attributable to negligence. The failure to take required action due to

circumstances beyond a party's control is not considered "neglect." Pioneer Investment Services Co.

v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 394, 113 S.Ct. 1489, 1497-98, 123 L.Ed.2d

74 (1993). Here, plaintiff alleges that his medical disabilities, including "head, neck, brain and limb

functions, memory loss, [and] blackouts," have prevented him from tending to this case. (See Plf.

Mot. at 2). These clearly are circumstances beyond plaintiff's control and, thus, do not constitute

"excusable neglect." See Wuliger v. Cohen, 215 F.R.D. 535, 538 (N.D. Ohio 2003) (failure of

defendant to timely file answer due to extreme stress that caused temporary memory loss was not

"excusable neglect"). 

To the extent plaintiff relies on the "catch-all" provision of Rule 60(b)(6), his argument is

similarly unavailing. Rule 60(b)(6) is limited to exceptional or extraordinary circumstances. See

Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356 (5th Cir. 1993) (finding that movant must

demonstrate exceptional circumstances proving that enforcement of the judgment would be unjust).

No such evidence exists here. In fact, plaintiff offers no evidence whatsoever to support his claims

of debilitating injuries and abandonment by his lawyer. See Moore v. Palacios, No. C-03-330, 2007

WL 205853 at *3 (S.D. Tex. Jan. 23, 2007) (denying Rule 60(b) motion where movant presented

only unsubstantiated and conclusory allegations of fraud by court-appointed counsel). Moreover,

 

 Case 3:05-cv-01539-D-BD Document 96 Filed 02/15/07 Page 4 of 5 PageID 471
2

 Plaintiff also alleges that he "was not sent time limit to file written objections" to the recommendation

dismissing his case. (See Plf. Mot. at 2). However, the recommendation issued by the magistrate judge on December

14, 2006 expressly provides that any party may file written objections "within 10 days after being served with a copy."

Burr, 2006 WL 3883900 at *3.

plaintiff fails to explain why he waited so long to advise the court of his current address. Had

plaintiff simply communicated with the court or his lawyer, he could have avoided dismissal of this

action. His belated attempt to resurrect this case through unsupported allegations about his medical

condition and unjustified attacks on his former attorney, who agreed to represent plaintiff as a

service to the court, is not an "extraordinary circumstance" justifying relief under Rule 60(b)(6).2

RECOMMENDATION

Plaintiff's "appeal" and "objection" to the dismissal of this case should be treated as a Rule

60(b) motion for relief from final judgment. The motion [Doc. #93] 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

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: February 15, 2007.

 

 Case 3:05-cv-01539-D-BD Document 96 Filed 02/15/07 Page 5 of 5 PageID 472