IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KELVIN DWIGHT PRICE, §

§

Plaintiff, §

§

§ Civil Action No. 3:05-CV-2135-R

v. §

§

NFN VICKERY, et al., §

§

Defendants. §

REPORT AND RECOMMENDATION

Pursuant to the District Court’s Order of Reference, filed July 13, 2007, Plaintiff’s letter request

to reopen the above-referenced cause of action, filed June 20, 2007, has been referred to the

undersigned Magistrate Judge for hearing, if necessary, and determination or recommendation.

I. BACKGROUND

On October 31, 2005, while incarcerated at the Dawson State Jail, plaintiff filed a civil rights

complaint pursuant to 42 U.S.C. § 1983 against officers at the Hutchins State Jail. On March 20, 2006,

the Court granted him leave to proceed in forma pauperis and informed him that he must “notify the

Court of any change of address by filing a written Notice of Change of Address with the Clerk.” That

order also warned plaintiff that the “[f]ailure to file such notice may result in this case being dismissed

for want of prosecution.” The Court ordered service of process on the defendants on that date, and

defendants filed their answers on May 1, 2006. The district court issued a scheduling order on May

5, 2006. 

On May 23, 2006, the defendants filed a motion for involuntary dismissal on the grounds that

the scheduling order mailed to the plaintiff had been returned as undeliverable, and that according to

the Texas Department of Criminal Justice, the plaintiff had been released on March 8, 2006. Because

 

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plaintiff had not submitted a change of address as required, defendants argued, his suit should be

dismissed for failure to prosecute. On July 31, 2006, the Court granted the defendants’ motion and

dismissed plaintiff’s suit without prejudice for want of prosecution pursuant to Rule 41(b) of the

Federal Rules of Civil Procedure.

On June 20, 2007, approximately eleven months later, the Court received unsigned

correspondence from plaintiff which states in its entirety, “I would like to reopen Kelvin Dwight Price

-vs- Tarver- Vickery, 1983, filed I think 8-05.” The envelope in which the correspondence arrived

reflects that plaintiff is an inmate at the Hutchins State Jail.

II. ANALYSIS

To the extent that plaintiff’s unsigned correspondence requesting that his case be reopened may

be construed as a motion, it invokes the discretion of the Court, and the “extent of the court’s discretion

. . . depends, in the first instance, on the particular Federal Rule of Civil Procedure under which the

motion arises.” See Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir.

2003) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990),

abrogated on other grounds by Little v. Liquid Air. Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc)).

When a party moves for reopening after judgment, the motion “constitutes either a motion to ‘alter or

amend’ under Fed. R. Civ. P. 59(e) or a motion for ‘relief from judgment’ under Fed. R. Civ. P. 60(b)”

depending upon when the party filed the motion. Id. Motions filed within ten days of judgment fall

under Rule 59(e) whereas later-filed motions fall under Rule 60(b). Id. 

Because plaintiff filed the instant request well after the ten day period for a Rule 59(e) motion,

to the extent that it constitutes a motion, such motion would fall within the parameters of Rule 60(b).

See also Smith v. Texas Dept. of Criminal Justice, Institutional Div. 79 Fed.Appx. 61, 62, 2003 WL

22426945, *1 (5th Cir. 2003) (construing prisoner’s motion to reopen a § 1983 civil rights complaint

which had been dismissed pursuant to Rule 41(b) as arising under Rule 60(b)) (citing Halicki v.

 

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1

 The Court notes, furthermore, that the dismissal of this action was without prejudice. Consequently, the

dismissal does not of itself prevent plaintiff from commencing a new action against defendants on the same factual

allegations. Of course, any new action would be subject to the applicable statute of limitations and other procedural

barriers to consideration of its merits. 

Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir.1998). Rule 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party or a party’s

legal representative from a final judgment, order, or proceeding for the following reasons: (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 (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment

is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment

upon which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application; or (6) any other reason

justifying relief from the operation of the judgment.

Plaintiff’s bare one-sentence request to reopen fails to invoke any of the bases for relief set forth in Rule

60(b). Indeed, it suggests absolutely no basis to reopen this case. It provides no explanation for his

failure to submit a change of address to this date or to prosecute this action after his release from

incarceration in March 2006.1 For these reasons, the submitted request justifies no relief from

judgment. 

III. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court

DENY plaintiff’s request to reopen this case. 

SIGNED this 18th day of July, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of this report and recommendation on

plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object

to this report and recommendation must file and serve written objections within ten days after being

served with a copy. A party filing objections must specifically identify those findings, conclusions, or

recommendation to which objections are being made. The District Court need not consider frivolous,

conclusory, or general objections. Failure to file written objections to the report and recommendation

within ten days after being served with a copy shall bar the aggrieved party from appealing the factual

findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except

upon grounds of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir.

1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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