Opinion
No. 3:02-CV-0193-P.
May 18, 2004
REPORT AND RECOMMENDATION
Pursuant to the provisions of 28 U.S.C. § 636(b) and Orders of Reference dated December 19, 2003, and April 28, 2004, the District Court referred plaintiff's pro se letter/motion filed December 11, 2003, and his letter/motion filed March 4, 2004, to the undersigned Magistrate Judge for report and recommendation.
I. BACKGROUND
On September 25, 2003, the undersigned Magistrate Judge recommended that the Court dismiss this action as untimely. On October 10, 2003, the Court accepted the findings and recommendation of the United States Magistrate Judge, and entered a judgment in this case that dismissed this action as untimely. Approximately two months later, on December 11, 2003, plaintiff filed a letter which he requests that the Court construe as a motion under Fed.R.Civ.P. 60(a). Attached to that December 11, 2003 letter/motion is a letter from the Social Security Administration indicating that plaintiff received disability benefits for "Schizophrenic, Paranoid and other Functional Psychotic Disorders." On March 4, 2004, plaintiff filed a second letter/motion which he wants the Court to construe as a motion under Fed.R.Civ.P. 60(b).
II. RULE 60(a)
Pursuant to Fed.R.Civ.P. 60(a), plaintiff wants the Court to consider the letter from the Social Security Administration to show that he was under a legal disability. He argues that the Court did not consider this letter, and that had the United States Magistrate Judge "conducted a more thorough inquiry, this evidence would have been submitted."Rule 60(a) concerns correction of clerical mistakes. Plaintiff's motion has identified no clerical mistake which needs correction. The omission of the letter that plaintiff wants the Court to consider is not attributable to clerical error, but rather, to plaintiff's failure to submit it. Plaintiff is thus entitled to no post-judgment relief under Rule 60(a).
Furthermore, the Court considered and rejected plaintiff's theory that his mental condition should save this action from its untimeliness.
To prevail on an unsound mind tolling theory, a plaintiff must "produce either (1) specific evidence that would enable the court to find that he `did not have the mental capacity to pursue litigation' or (2) a fact-based expert opinion to that effect." Freeman v. American Motorists Ins. Co., 53 S.W.3d 710, 713 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (quoting Grace v. Colorito, 4 S.W.3d 765, 769 (Tex.App.-Austin 1999, pet. denied) and citing Porter v. Charter Med. Corp., 957 F. Supp. 1427, 1438 (N.D. Tex. 1997)). He must show that his mental illness "rendered him unable to manage his affairs or comprehend his legal rights." See Helton v. Clements, 832 F.2d 332, 336 (5th Cir. 1987) (applying Texas law).
* * *
In view of the findings in plaintiff's consolidated habeas action and plaintiff's ability to commence and participate in federal litigation since January 2000, the Court summarily rejects plaintiff's assertion that he was of "unsound mind" prior to October 2001. Such assertion is simply not supported by plaintiff's prior litigation in this Court, and is specifically controverted by the thorough findings of the Magistrate Judge in plaintiff's federal consolidated habeas action.
( See Findings, Conclusions, and Recommendation of the United States Magistrate Judge at 6, 8-9.) Although the letter from the Social Security Administration constitutes evidence that plaintiff had a mental impairment which prevented him from engaging in substantial gainful activity, it does not constitute specific evidence that enables the Court to find that plaintiff lacked the mental capacity to pursue litigation. Thus, even were the Court to consider the omitted letter from the Social Security Administration in the context of this motion under Fed.R.Civ.P. 60(a), plaintiff would be entitled to no post-judgment relief.
III. RULE 60(b)
By his letter motion relying upon Fed.R.Civ.P. 60(b), plaintiff argues that the judgment entered in this case is in error due to the evidence that he was under a disability. He asserts that relief under Rule 60(b) is proper. He contends that it is not his fault that the initial investigation was not thorough. He submits additional information regarding his extensive psychological history — (1) the letter from the Social Security Administration that he submitted with his Rule 60(a) motion; (2) an affidavit from his father, Reverend Lawrence W. Althouse, and (3) a chronological psychological history commencing in 1960 and proceeding through 1999.
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 does not identify the specific subparagraph of Fed.R.Civ.P. 60(b) upon which he relies for obtaining relief from the judgment entered in this case. As plaintiff presents no newly discovered evidence which could not have been discovered through due diligence, it appears that he relies upon subparagraph (1) in that he failed to provide the documents submitted with his Rule 60(b) motion due to mistake, inadvertence, or excusable neglect. It further appears that he might also be relying on subparagraph (6) in that the submitted documents allegedly justify relief from the operation of the judgment entered in this case under Rule 60(b)(6).
Regardless of which specific subparagraph of Rule 60(b) plaintiff relies upon, the submitted documents justify no relief from judgment. Just as the Social Security Administration letter does not constitute specific evidence which enables the Court to find that plaintiff lacked the mental capacity to pursue litigation, neither do plaintiff's other documents. The submitted affidavit sets forth plaintiff's general history of emotional and mental problems from early childhood through 1970, as well as some discussion of plaintiff's mental condition while represented by attorney Scott Kendall. It provides nothing to show that plaintiff was unable to pursue litigation between 1998, when the events leading to this action occurred, and 2001, when he filed this action. The submitted psychological history from 1960 through 1999 also provides no specific evidence that he was unable to pursue litigation during the relevant time period. For these reasons, the submitted documents justify no relief from judgment under Rule 60(b).
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the letter motions (docs. 11 and 13) filed by plaintiff pursuant to Fed.R.Civ.P. 60(a) and (b). The submitted documents justify no relief from the judgment entered in this case.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, 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 these findings, conclusions and recommendation must file and serve written objections within ten (10) 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 proposed findings, conclusions, 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).