Civ. No. 96-3361, SECTION: “C” (5).United States District Court, E.D. Louisiana.
February 11, 2000.
ALMA L. CHASEZ, United States Magistrate Judge.
Presently before the Court is plaintiff’s “request [for] relief from judgment” pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. For the reasons that follow, it is ordered that plaintiff’s motion is denied.
The above-captioned matter is a civil rights suit brought pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint pro se but subsequently-appointed counsel later amended the complaint on plaintiff’s behalf. (Rec. docs. 1, 13, 21). Trial by jury was not requested in either plaintiff’s original or amended complaints. (Rec. docs. 1, 21). On the eve of trial, irreconcilable differences developed between plaintiff and his court-appointed counsel. (Rec. docs. 34, 36). After plaintiff withdrew his request for substitute counsel, original counsel was allowed to withdraw and the trial was continued for a period of time to allow plaintiff to obtain counsel of his own choosing. (Id.). Plaintiff failed to do so and trial was ultimately held on August 17, 1998. (Rec. doc. 39). On January 5, 1999, the Court entered judgment dismissing plaintiff’s suit with prejudice and at his cost after finding that he had not proven his case by a preponderance of the evidence. (Rec. docs. 47, 48). plaintiff appealed the latter dismissal to the United States Court of Appeals for the Fifth Circuit which, on December 15, 1999, dismissed his appeal and issued a sanctions warning after finding the appeal to be frivolous. Doyle v. Slidell Police Department,et al, No. 99-30160 (5th Cir. Dec. 15, 1999) (unpublished opinion)
Plaintiff is now before the Court seeking relief under Rule 60 (b) on three grounds. First, he contends that he was denied his right to a jury trial as allowed by Rule 38, Fed.R.Civ.P. Second, plaintiff alleges that the undersigned “retaliated” against him after he rejected a pre-trial offer to settle his case for $20,000. Third, plaintiff asserts that the Court erred in refusing to appoint counsel to represent him.
Rule 60(b) provides in pertinent part as follows:
[o]n 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 . . . (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . . or (6) any other reason justifying relief from operation of the judgment . . . The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Judgment was entered dismissing plaintiff’s case on January 5, 1999 but plaintiff’s motion was not signed until February 2, 2000, over one year later. It is thus untimely to obtain relief under Rule 60(b)(1), (2), or (3). The Court’s judgment having been affirmed by the Fifth Circuit, it is not void under Rule 60 (b)(4) and there is no suggestion that the judgment has been satisfied. That leaves only Rule 60(b)(6) as a possible source of relief for plaintiff.
The grounds advanced by plaintiff do not entitle him to relief under Rule 60(b)(6). Contrary to his present representations, plaintiff made no demand for trial by jury, timely or otherwise. The Court has no knowledge of any $20,000 settlement offer being made to plaintiff. Finally, the Court did appoint counsel to represent plaintiff but that relationship soured as trial grew imminent. If a Rule 60(b) motion cannot be used as a substitute for an appeal, Heliac v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 471 (5th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1143 (1999), it certainly cannot be used to vacate a judgment which has been affirmed following an appeal. The grounds set forth in plaintiff’s motion simply have no support in fact or law. As the admonition issued by the Fifth Circuit appears to have had little effect on plaintiff, the Court specifically cautions plaintiff that the signing and filing of additional pleadings herein by him, whether prepared by himself or other inmates, will subject him to the full measure of sanctions available to the Court, including, but not limited to, Rule 11, Fed.R.Civ.P.