Smith v. Bounds

841 F.2d 77, 1988 WL 16515

Opinions

PER CURIAM.

We reheard this case, in banc, and we affirm the judgment of the district court on the facts and for the reasons set forth in the panel opinion, Smith v. Bounds, 813 F.2d 1299 (4 Cir.1987), as supplemented by the additional comments which follow.

Defendants contend that they presented a case of excusable neglect under Rule 60(b), F.R.Civ.P., justifying relief from the May 14, 1985 order, decreeing that the state must provide assistance to prisoners by trained attorneys, and permission to re open the case in order to show that North Carolina had a constitutionally acceptable prisoner library program. We note two significant factual findings by the district court in rejecting this contention. First, in denying defendants’ initial motion for reconsideration, the district court concluded that defendants had not shown excusable neglect because “defendants’ failure to respond to the December 21, 1984 order was not an isolated incident. Clearly, defendants knew or should have known that counsel had a history of failing to respond to the court’s orders.”

Similarly when the district court denied defendants’ second renewed motion for reconsideration,

Footnotes

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* it dealt with defendants’ argument that while Safron’s dereliction in failing to respond to the December 21,1984 order was not excusable neglect, their failure to respond was excusable because Saf-ron’s omission was an isolated incident which neither defendants nor Safron’s supervisors could have anticipated. Again it found that “actions of counsel which precipitated the May 14, 1985 order and opinion were not isolated incidents." It noted that “the state had failed eleven other times over the course of this litigation to timely respond to this court’s orders.... Thus, the state’s failure to comply with the court’s orders cannot be laid solely at Mr. Safron’s door ... [Tjhe court concludes that defendants must share the responsibility for counsel’s failure to provide the court with sufficient information to determine the adequacy of the law library plan.”

Coupled with these factual findings is the district court’s finding, described in the panel opinion and reiterated by the district court in its opinion denying the initial motion for reconsideration, that North Carolina was unable or unwilling to implement its library plan consistent with minimum constitutional requirements.

From the facts of record and for the reasons set forth in the panel opinion as well as our own examination of the record, we conclude that these findings of fact are not clearly erroneous. If, as the district court permissibly found, there was neglect on the part of all of the defendants, it follows that they could not establish “excusable neglect,” they had no right to reconsideration under Rule 60(b), and the district court correctly denied their repeated motions for reconsideration.

AFFIRMED.

Defendants’ first renewed motion for reconsideration was denied by simple order without opinion.