IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

FRANCIS TEJANI KUNDRA, #20661647, )

Petitioner, )

)

v. ) 3:05-CV-2511-M

)

CYNTHIA FIGUEROA CALHOUN, )

Dallas County Clerk, )

Respondent. )

 

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s order of reference filed on May 24, 2006, Petitioner’s

Motion filed on May 22, 2006, seeking leave to file a motion for reconsideration has been

referred to the United States Magistrate Judge. The findings, conclusions and recommendation

of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

On February 2, 2006, the District Court adopted the Findings, Conclusions and

Recommendation of the undersigned Magistrate Judge and filed a judgment dismissing the

petition for writ of mandamus with prejudice as frivolous. In the findings, the Court noted that

Petitioner sought to compel Cynthia Figueroa Calhoun, an employee of the Dallas County

District Clerk’s Office, to file post-conviction state habeas corpus writs. Relying on Moye v.

Clerk, DeKalb County Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973), this Court held that

Petitioner’s pleadings sought mandamus type relief , and that federal courts were without power

to issue writs of mandamus against state officers in the performance of their duties where

mandamus was the only relief sought. Petitioner did not appeal.

 

 Case 3:05-cv-02511-M Document 12 Filed 06/19/06 Page 1 of 3 PageID 32
1 There are four general grounds upon which a court may alter or amend a final

judgment under Rule 59(e): (1) new evidence has become available; (2) it is necessary to correct

manifest errors of law or fact upon which the judgment is based; (3) it is necessary to prevent

manifest injustice; or (4) the existence of an intervening change in the controlling law. In re

Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002); Peterson v. Cigna Group Ins., 2002

WL 1268404, at *2 (E.D. La. 2002). A party may not use a Rule 59(e) motion to relitigate issues

that "should have been urged earlier or that simply have been resolved to the movant's

dissatisfaction." Id. It is within this Court’s discretion whether to reopen a case under Rule

59(e). Weber v. Roadway Exp., Inc., 199 F.3d 270 (5th Cir. 2000).

2

On May 22, 2006, Petitioner filed the instant motion for leave to file a motion for

reconsideration. He asks the Court to reconsider its ruling. In particular, he alleges that

Respondent “has denied me this very important right” -- namely the alleged failure to file a state

writ – and that he wishes to sue her “in her personal capacity as a private citizen pursuant to a

Biven[s] action.” (Pet’s Mot. at 1). 

Insofar as Petitioner seeks to rely on Rule 59(e), Federal Rules of Civil Procedure, his

motion for leave should be denied because it was not filed within ten days after entry of

judgment. See Fed. R. Civ. 59(e). Moreover, Petitioner cannot make the requisite showing

under Rule 59(e).1

Liberally construing Petitioner’s motion as one for relief from judgment under Federal

Rule of Civil Procedure 60(b), it fares no better. Rule 60(b)(1) through (b)(5), which address

inadvertence, excusable neglect, newly discovered evidence, fraud, and misrepresentation, do

not apply in this case. Rule 60(b)(6) provides that “the court may relieve a party . . . from a final

judgment . . . [for] any other reason justifying relief from the operation of the judgment.” Relief

under this subsection is available “‘only if extraordinary circumstances are present.’” 

Government Financial Services One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767 (5th Cir.

1995) (quoted case omitted).

 

 Case 3:05-cv-02511-M Document 12 Filed 06/19/06 Page 2 of 3 PageID 33
3

“Extraordinary circumstances” are not present in this case. Moreover, as noted in the

Findings, Conclusions and Recommendation filed on January 11, 2006, Petitioner’s pleadings

only sought mandamus type relief against Respondent Calhoun. While Petitioner now seeks to

raise a civil rights violation against Respondent Calhoun, he has not alleged the violation of a

federal constitutional right. Accordingly, to the extent Petitioner seeks to rely on Rule 60(b), his

motion for leave to file a motion for reconsideration should be denied.

RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court deny Petitioner’s

motion for leave to file a motion for reconsideration (docket # 9). 

 A copy of this recommendation will be mailed to Petitioner.

Signed this 19 day of June , 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

 Case 3:05-cv-02511-M Document 12 Filed 06/19/06 Page 3 of 3 PageID 34