IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 95-30042 (Summary Calendar)
NOBLE MARSHALL,
Plaintiff-Appellant,
versus
DUNCAN S. KEMP, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Louisiana (93-CV-2359H)
(May 15, 1995)
Before DUHÉ, WIENER and SMITH, Circuit Judges.
PER CURIAM:*
In this civil rights action Plaintiff-Appellant Noble Marshall
appeals from the district court's denial of his Federal Rules of
Civil Procedure 60(b) motion for relief from judgment and from the
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. court's failure to hold an evidentiary hearing prior to dismissing
his complaint. Finding no reversible error, we affirm.
I
FACTS AND PROCEEDINGS
Proceeding pro se and in forma pauperis, Marshall filed a
42 U.S.C. § 1983 complaint against Tangipahoa Parish District
Attorney Duncan S. Kemp; Judge Jefferson D. Hughes; Judge James E.
Kuhn; Clerk of Court John J. Dahmer; Deputy Clerk Cynthia Johnson;
Indigent Defender Michael Pawlus; and Tangipahoa Parish Assistant
District Attorneys Clara E. Toombs, Scott Sledge, and Pat Dunn.
Marshall claims that he was falsely imprisoned by the defendants
before and after his state court conviction for armed robbery. He
alleges that the defendants falsified the transcripts and withheld
certain documents and information from him. His claims comprise
prosecutorial misconduct, general civil rights violations, and
conspiracy, for which he seeks damages, attorneys' fees, and court
costs.
Over Marshall's objections to the magistrate judge's report,
some of Marshall's claims were dismissed by the district court
without prejudice as habeas corpus claims for failure to exhaust
state remedies; and his claims against Hughes, Kuhn, Kemp, Toombs,
Sledge and Dunn were dismissed as frivolous, but without prejudice,
on the basis of absolute immunity. The court stayed and severed
the claims against Pawlus, Dahmer, and Johnson, pending the
2 exhaustion of state and federal habeas corpus remedies.1
Well over a year later Marshall filed a motion requesting the
district court to reconsider its order or, alternatively, to allow
an interlocutory appeal. Marshall argued that he had newly
discovered law and facts. He also sought to add four additional
named defendants and four unnamed defendants, but he failed to
identify the claims against them. The district court denied the
motion, treating it as a Rule 60(b) motion.
II
ANALYSIS
A. Entitlement to Proceed IFP on Appeal
The district court granted Marshall's motion to proceed IFP in
that court. In its order denying Marshall's motion for
reconsideration, the district court stated that Marshall's "request
for leave to appeal the September 2, 1993, interlocutory order is
also DENIED. [Marshall] has shown no good cause for the appeal nor
for the inordinate delay in seeking said appeal." This statement
does not constitute a decertification of Marshall's IFP status.
See Fed. R. App. P. 24(a). Marshall is entitled to proceed IFP in
this court.
B. Rule 60(b) Motion for Relief from Judgment
Marshall's postjudgment "motion to reconsider" was filed over
15 months after the entry of the district court's judgment
dismissing his civil rights complaint. Any postjudgment motion
1 Final judgment was entered before the United States Supreme Court issued its opinion in Heck v. Humphrey, 114 S. Ct. 2364 (1994).
3 that challenges the underlying judgment, requests relief other than
correction of a purely clerical error, and is served more than ten
days after judgment is entered, is treated as a motion under
Fed. R. Civ. P. 60(b). Harcon Barge Co. v. D & G Boat Rentals,
784 F.2d 665, 667 (5th Cir.) (en banc), cert. denied, 479 U.S. 930
(1986). Therefore, Marshall's motion for reconsideration was
treated correctly by the district court as a Rule 60(b) motion for
relief from the judgment. See Ford v. Elsbury, 32 F.3d 931, 937
n.7 (5th Cir. 1994).
Our review is limited to whether the district court abused its
discretion in denying the Rule 60(b) motion. Carimi v. Royal
Caribbean Cruise Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992).
"It is not enough that the granting of relief might have been
permissible, or even warranted--denial must have been so
unwarranted as to constitute an abuse of discretion." Seven Elves,
Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981).
Generally, the denial of a Rule 60(b) motion does not bring up the
underlying judgment for review. See Harrison v. Byrd, 765 F.2d
501, 503 (5th Cir. 1985).
Rule 60(b) lists the reasons that authorize the district court
to relieve a party from a final judgment. In considering a Rule
60(b) motion, the district court should consider the following
factors: (1) final judgments should not be disturbed lightly;
(2) a Rule 60(b) motion is not to be used as a substitute for
appeal; (3) the rule should be interpreted liberally to do
substantial justice; (4) whether the motion was made within a
4 reasonable time; (5) if the judgment was a default or dismissal
without consideration of the merits, whether the interest in
deciding cases on the merits outweighs the interest in the finality
of judgments; (6) whether there are any intervening equities that
would make it inequitable to grant relief; and (7) any other
factors relevant to the justice of the judgment under attack.
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356 (5th Cir.
1993). Relief is appropriate under Rule 60(b)(6) "only if
extraordinary circumstances are present." American Totalisator
Corp. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir. 1993)
(internal quotations and citation omitted).
We liberally construe the briefs of pro se appellants. Haines
v. Kerner, 404 U.S. 519, 520 (1972). Liberally construing
Marshall's appellate arguments, we see that he argues that the
district court should have granted his motion because Judge Kuhn,
a traffic and juvenile court judge, was without jurisdiction over
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 95-30042 (Summary Calendar)
NOBLE MARSHALL,
Plaintiff-Appellant,
versus
DUNCAN S. KEMP, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Louisiana (93-CV-2359H)
(May 15, 1995)
Before DUHÉ, WIENER and SMITH, Circuit Judges.
PER CURIAM:*
In this civil rights action Plaintiff-Appellant Noble Marshall
appeals from the district court's denial of his Federal Rules of
Civil Procedure 60(b) motion for relief from judgment and from the
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. court's failure to hold an evidentiary hearing prior to dismissing
his complaint. Finding no reversible error, we affirm.
I
FACTS AND PROCEEDINGS
Proceeding pro se and in forma pauperis, Marshall filed a
42 U.S.C. § 1983 complaint against Tangipahoa Parish District
Attorney Duncan S. Kemp; Judge Jefferson D. Hughes; Judge James E.
Kuhn; Clerk of Court John J. Dahmer; Deputy Clerk Cynthia Johnson;
Indigent Defender Michael Pawlus; and Tangipahoa Parish Assistant
District Attorneys Clara E. Toombs, Scott Sledge, and Pat Dunn.
Marshall claims that he was falsely imprisoned by the defendants
before and after his state court conviction for armed robbery. He
alleges that the defendants falsified the transcripts and withheld
certain documents and information from him. His claims comprise
prosecutorial misconduct, general civil rights violations, and
conspiracy, for which he seeks damages, attorneys' fees, and court
costs.
Over Marshall's objections to the magistrate judge's report,
some of Marshall's claims were dismissed by the district court
without prejudice as habeas corpus claims for failure to exhaust
state remedies; and his claims against Hughes, Kuhn, Kemp, Toombs,
Sledge and Dunn were dismissed as frivolous, but without prejudice,
on the basis of absolute immunity. The court stayed and severed
the claims against Pawlus, Dahmer, and Johnson, pending the
2 exhaustion of state and federal habeas corpus remedies.1
Well over a year later Marshall filed a motion requesting the
district court to reconsider its order or, alternatively, to allow
an interlocutory appeal. Marshall argued that he had newly
discovered law and facts. He also sought to add four additional
named defendants and four unnamed defendants, but he failed to
identify the claims against them. The district court denied the
motion, treating it as a Rule 60(b) motion.
II
ANALYSIS
A. Entitlement to Proceed IFP on Appeal
The district court granted Marshall's motion to proceed IFP in
that court. In its order denying Marshall's motion for
reconsideration, the district court stated that Marshall's "request
for leave to appeal the September 2, 1993, interlocutory order is
also DENIED. [Marshall] has shown no good cause for the appeal nor
for the inordinate delay in seeking said appeal." This statement
does not constitute a decertification of Marshall's IFP status.
See Fed. R. App. P. 24(a). Marshall is entitled to proceed IFP in
this court.
B. Rule 60(b) Motion for Relief from Judgment
Marshall's postjudgment "motion to reconsider" was filed over
15 months after the entry of the district court's judgment
dismissing his civil rights complaint. Any postjudgment motion
1 Final judgment was entered before the United States Supreme Court issued its opinion in Heck v. Humphrey, 114 S. Ct. 2364 (1994).
3 that challenges the underlying judgment, requests relief other than
correction of a purely clerical error, and is served more than ten
days after judgment is entered, is treated as a motion under
Fed. R. Civ. P. 60(b). Harcon Barge Co. v. D & G Boat Rentals,
784 F.2d 665, 667 (5th Cir.) (en banc), cert. denied, 479 U.S. 930
(1986). Therefore, Marshall's motion for reconsideration was
treated correctly by the district court as a Rule 60(b) motion for
relief from the judgment. See Ford v. Elsbury, 32 F.3d 931, 937
n.7 (5th Cir. 1994).
Our review is limited to whether the district court abused its
discretion in denying the Rule 60(b) motion. Carimi v. Royal
Caribbean Cruise Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992).
"It is not enough that the granting of relief might have been
permissible, or even warranted--denial must have been so
unwarranted as to constitute an abuse of discretion." Seven Elves,
Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981).
Generally, the denial of a Rule 60(b) motion does not bring up the
underlying judgment for review. See Harrison v. Byrd, 765 F.2d
501, 503 (5th Cir. 1985).
Rule 60(b) lists the reasons that authorize the district court
to relieve a party from a final judgment. In considering a Rule
60(b) motion, the district court should consider the following
factors: (1) final judgments should not be disturbed lightly;
(2) a Rule 60(b) motion is not to be used as a substitute for
appeal; (3) the rule should be interpreted liberally to do
substantial justice; (4) whether the motion was made within a
4 reasonable time; (5) if the judgment was a default or dismissal
without consideration of the merits, whether the interest in
deciding cases on the merits outweighs the interest in the finality
of judgments; (6) whether there are any intervening equities that
would make it inequitable to grant relief; and (7) any other
factors relevant to the justice of the judgment under attack.
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356 (5th Cir.
1993). Relief is appropriate under Rule 60(b)(6) "only if
extraordinary circumstances are present." American Totalisator
Corp. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir. 1993)
(internal quotations and citation omitted).
We liberally construe the briefs of pro se appellants. Haines
v. Kerner, 404 U.S. 519, 520 (1972). Liberally construing
Marshall's appellate arguments, we see that he argues that the
district court should have granted his motion because Judge Kuhn,
a traffic and juvenile court judge, was without jurisdiction over
Marshall's criminal proceeding.
The district court suggested that the motion for
reconsideration was not timely filed for the purposes of Rule
60(b)(1),(2), or (3) as the order from which Marshall sought relief
had been entered more than a year before Marshall filed his motion
for relief. See Fed. R. Civ. P. 60(b). The district court noted
that Rule 60(b)(6) specifies that a court may relieve a party from
the effects of an order for "any other reason justifying relief
from the operation of judgment" when that motion is brought within
a reasonable time. The court determined, however, that fifteen
5 months was not a reasonable time. As Marshall's appellate brief
fails to address the determination that his motion was not made in
a reasonable time, we deem that issue to have been abandoned.
As the district court observed, the only new allegation
asserted in Marshall's Rule 60(b) motion was that Judge Kuhn was
not immune from suit because, as a traffic and juvenile court
judge, he acted outside his jurisdiction in handling Marshall's
criminal proceeding. The district court observed that Marshall
submitted no tangible support for his contention that Kuhn was
acting outside the scope of his judicial authority. The court also
noted that Marshall provided no cause for the addition of other
defendants, and that he failed to prove exhaustion of his state or
federal habeas corpus remedies.
Marshall has failed to establish that "extraordinary
circumstances are present," requiring relief under Rule 60(b)(6).
See American Totalisator Corp., 3 F.3d at 815. As Marshall has not
shown that the district court's denial of his Rule 60(b) motion was
so unwarranted as to constitute an abuse of discretion, we must
affirm the district court's ruing.
C. Evidentiary Hearing
Marshall insists that the district court erred in dismissing
his civil rights complaint without holding an evidentiary hearing.
As review of the underlying judgment of the district court is
precluded, and as this issue was not asserted in Marshall's 60(b)
motion, we decline to consider it. See Harrison, 765 F.2d at 503.
AFFIRMED.