Opinion
Civil Action No. 03-0761, Section "C" (1).
August 2, 2005
ORDER AND REASONS
Before the Court are Plaintiff's Motion to Reopen his claims under 42 U.S.C. § 1983 against authorities at Orleans Parish Prison, and his Motion for Access to the law library and phone at Saint Barnard Parish Prison to assist in conducting further discovery. Having considered the motions, the record and the law, the Court hereby DENIES Plaintiff's Motions.
I. Background
On March 19, 2003, Plaintiff Mark Vinzant first asserted claims under 42 U.S.C. § 1983 against officials at Orleans Parish Prison (OPP), who were alleged to have been deliberately indifferent to his health when in March 2002 he was required (with other inmates) to paint his tier and cell with "toxic" paint. ( See generally Rec. Doc. 1). On May 13, 2003, the first preliminary telephone status conference (TSC) was set. (Rec. Doc. 8). On June 10, the TSC was indefinitely postponed until Plaintiff's transfer to Lompoc Prison in California was complete. After a continuance prompted by Plaintiff, a first TSC was conducted in front of the Magistrate Judge on August 12, 2003, at which Defendants were ordered to produce a copy of Plaintiff's medical records. (Rec. Doc. 17). On October 23, prison officials at Lompoc arranged for Plaintiff's telephone appearance at a second TSC. (Rec. Doc. 20).
After refusing to consent to the Magistrate, the matter came before this Court and another TSC was scheduled on December 12, 2003 (Rec. Doc. 24). After repeated efforts to contact the Plaintiff by mail, the TSC was canceled on January 9, 2004. (Rec. 25). The matter was subsequently placed on the Court's call docket on January 21 and dismissed without prejudice when Plaintiff failed to appear. (Rec. Doc. 27). On February 6, 2004, Plaintiff contacted the Court through retained counsel and his claims were reinstated. (Rec. Doc. 29). A third TSC was scheduled, continued and held on March 30, 2004, setting trial dates. (Rec. Doc. 32). After the trial was continued, another TSC was scheduled on November 17, 2004. This TSC was again continued when Plaintiff's counsel withdrew from the case to permit Mr. Vinzant time to retain different counsel. (Rec. Doc. 39). The TSC was reset to March 24, 2005. Despite efforts to contact Plaintiff, Mr. Vinzant for a second time failed to participate at this TSC. On March 29, the matter was dismissed without prejudice for second time due to Plaintiff's absence. (Rec. Doc. 42). At some point, after the March 24 TSC, Plaintiff was arrested and is currently in custody at St. Barnard Parish Prison.
On May 10, 2005 Plaintiff filed the instant motion to reopen the case. (Rec. Doc. 44). In a companion motion, he seeks copies of his court record at public expense and access to the law library at St. Barnard Parish Prison in addition to the use of phone calls to conduct discovery. (Rec. Doc. 45).
II. Law and Analysis
In its Order the Court dismissed Plaintiff's claims for want of prosecution. ( See Rec. Doc. 42). A dismissal for want of prosecution is customarily deemed an involuntary dismissal under
Fed.R.Civ.P. 41(b). See Edwards v. City of Houston, 78 F.3d 983, 994 (5th Cir. 1996); Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992). Lavespere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), cert. denied, 114 S. Ct. 171, 126 L. Ed. 2d 131 (1993). Accordingly, Plaintiff's instant motion may be considered as either a Fed.R.Civ.P 59(e) motion to alter or amend the judgment or a Fed.R.Civ.P 60(b) motion for relief from the judgment. Lavespere, 910 F.2d at 173. Because a Rule 59(e) motion must be filed within 10 days of entry of the judgment, and this motion was filed over a month after entry of the order of dismissal, the Court treats the motion as a Rule 60(b) motion. See id.
Rule 60(b) provides in pertinent part that "the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P 60(b). While a litigant may show cause to claim excusable neglect, a pattern of persistent inattention to or disregard of a district court's orders amounts to willful misconduct unworthy of relief under Rule 60. See Williams v. New Orleans Public Service, Inc., 728 F.2d 730, 734 (5th Cir. 1984) ("We cannot agree that the repeated instances of deliberate indifference and disregard of the Court's orders and requests display . . . the product of `oversight' or `inadvertence.'"). Failure to provide legitimate reasons for a litigant's neglect in following court instructions precludes relief under Rule 60. See United States v. One Lot of $25,721.00 in Currency, 938 F.2d 1417, 1421 (1st Cir. 1991) (affirming district court denial under Rule 60 when movant offered no justification for lack of response to summary judgment).
As is evident in the recitation of the procedural history of this case, the Court has afforded Mr. Vinzant great latitude to maintain his claims by granting repeated continuances of both telephone status conferences and trial dates while he has been transferred between correctional facilities and sought to retain different counsel. In his present motion, Plaintiff justifies his absence from the March 24 TSC because he was "arrested in March." (Rec. Doc. 44). However, the March 24 TSC occurred prior to his arrest. ( See 02cr0168, Rec. Doc. 98) (indicating arrest warrant was issued on March 24, 2005). He thus offers no legitimate justification for his neglect. More important, the absence on March and 24 and 29 marks the second time in the course of this litigation that Plaintiff's claims were dismissed for failure to appear or participate at telephone status conferences or the Court's call docket. ( See Rec. Doc. 27). Finally, the Court notes that at all significant junctures in the litigation, it attempted in vain to contact the Plaintiff by mail and by telephone to provide additional notice of all pertinent court dates, including both the most recent conference and call docket as well as earlier court dates, again in an effort to give him every opportunity to participate. In light of this apparent pattern of inattention or disregard, the Court will not permit Plaintiff to reopen his case at this point.
III. Conclusion
For the foregoing reasons, the Court holds that relief under Rule 60 is unwarranted. Accordingly, IT IS ORDERED that Plaintiff's Motion to Reopen be DENIED, and that all pending claims in the above-caption matter be DISMISSED WITH PREJUDICE. Due to this dismissal, the Court also denies Plaintiff's Motion for Access and Copies of the Court Record as MOOT.