Brief of Harris County, Texas

STATEMENT OF THE CASE

A. COURSE OF PROCEEDING AND DISPOSITION IN THE COURT BELOW

Edmund B. Heimlich brought this suit pursuant to the provisions of 42 U.S.C. §1983, 1985, 1986, 2000aa and 2000aa-6. He asserted claims for unreasonable seizure, false arrest, false imprisonment, malicious prosecution, tortious interference with business relationships and intentional infliction of emotional distress. R-221. Appellees Harris County, Texas, John B. Holmes, Jr., John Boone, Baldwin Chin, Stuart W. Brown, E. W. Godfrey, Judy Beddingfield and Dennis Ray Kuithe moved for the dismissal of this action pursuant to the provisions of Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the Plaintiff’s pleadings failed to state a claim upon which relief could be granted. R-64, 67, 229, 233. Appellees Werner Voigt, Ted Poe and the State of Texas filed an answer to the Plaintiff’s Complaint. R-244. The district court dismissed the Plaintiff’s case in its entirety and a final judgment was entered on February 5, 1997. R-252, 247, 253. Appellant Heimlich filed a notice of appeal. R-257. The appeal was dismissed for want of prosecution on May 20, 1997. R-258. On November 2, 2001, Appellant Heimlich filed a motion to vacate the judgment under Rule 60 of the Federal Rules of Civil Procedure. R-275. The district court denied the Appellant’s motion. R-279. Appellant Heimlich perfected his appeal from the district court’s ruling. R-281.

B. STATEMENT OF FACTS

On August 26, 1993, Appellant Heimlich, a real estate broker, executed a stop payment order against a commission check made payable to a sales person named Eric Pettorino. R-208. When Pettorino attempted to cash the check, he learned of the existence of the stop payment order. He reported the matter to the Harris County District Attorney’s Office. R-207. Appellee John B. Holmes, Jr. was the duly elected District Attorney at that time. Appellee John Boone, an Assistant District Attorney, presented to a grand jury an indictment against Appellant Heimlich for theft and misapplication of fiduciary property. R-206. The grand jury indicted the Appellant. The Appellant was convicted, but the conviction was later reversed by the Fourteenth Court of Appeals. Heimlich v State of Texas, 988 S.W.2d 382 (Tex. App. – Houston [14th Dist.] 1999, no pet.). The Appellant contends that he was maliciously prosecuted by the Defendants.

ARGUMENT AND AUTHORITIES

STANDARDS AND SCOPE OF REVIEW

“Motions under Rule 60(b) are directed to the sound discretion of the district court, and its denial of relief upon such motion will be set aside on appeal only for abuse of that discretion. . . . 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. 1981). See also Godwin v. Federal Savings and Loan Ins. Corp., 806 F.2d 1290 (5th Cir. 1987) (quoted language from Eskenazi is the “proper standard of review” for examining the denial of Rule 60(b) motions) and Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404 (5th Cir. 1994) (denial of a 60(b)(6) motion is reviewed only for an abuse of discretion). Further, “appellate review of the denial of a Rule 60(b) motion must be narrower in scope tha[n] review of the underlying order of dismissal so as not to vitiate the requirements of a timely appeal”. Vela v. Western Electric Co., 709 F.2d 375, 376 (5th Cir. 1983). “The movant must show ‘unusual or unique circumstances justifying such relief,’ and … may not use Rule 60(b) as ‘an avenue for challenging mistakes of law that should ordinarily be raised by timely appeal.’ ” Aucoin v. K-Mart Apparel Fashion Corp., 943 F.2d 6, 8 (5th Cir. 1991). Thus, the Court may not treat the appeal from the ruling on the Rule 60(b) motion as an appeal from the dismissal order itself. Vela, 709 F.2d at 376.

II.

THE DISTRICT COURT PROPERLY EXERCISED

ITS DISCRETION IN DENYING THE

APPELLANT’S MOTION TO VACATE JUDGMENT.

Appellees submit that the district court’s denial of the Appellant’s Rule 60(b) motion was well within the court’s discretion and certainly could not be characterized as an “abuse” of that discretion. Appellant Heimlich devotes a considerable portion of his brief to a discussion of the merits of his Complaint and the propriety of the district court’s dismissal of the case. However, those issues are not properly before the Court on this appeal. As this Court said in Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 471(5th Cir. 1998), “Rule 60(b) is not a substitute for a timely appeal”. The record clearly shows that Appellant Heimlich had the opportunity to appeal the dismissal of his case and simply failed to prosecute the appeal to completion. R-258. Even if the district court made an error of law when it dismissed Appellant Heimlich’s case, the court had the discretion to deny the Rule 60(b) motion “to prevent [the Appellant’s] end-run of the normal appellate process for correcting legal error”. Halicki, 151 F.3d at 471. Compare Godwin, 806 F.2d at 1294 (rule 60(b) may not be used to challenge alleged mistakes of law; instead, the alleged mistakes should be raised by direct appeal).

Appellant Heimlich contends that the district court abused its discretion in denying the motion to vacate the judgment because the judgment is allegedly “void”. In that regard the Appellant contends that the district court did not have jurisdiction to render a judgment. Although it is not entirely clear in the Appellant’s brief, Appellant Heimlich appears to base his argument on the holding in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck the Supreme Court held that a section 1983 claim for malicious prosecution is not cognizable if the plaintiff’s conviction has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. However, Heck does not stand for the proposition that the district court has no subject matter jurisdiction simply because the section 1983 claim is not cognizable. If that were so, no ruling of any sort other than a dismissal for want of jurisdiction could be rendered. In Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994), this Court determined that the dismissal with prejudice of just such a section 1983 complaint is appropriate when it is clear that the plaintiff will never have a claim against the defendant based on the particular facts alleged even if the plaintiff eventually satisfies the precondition to a valid claim under Heck. Obviously, if the court had no subject matter jurisdiction over the case it could not enter a dismissal with prejudice. Consequently, in the instant case the district court did have jurisdiction notwithstanding the fact that the section 1983 claim was not cognizable.

The Appellant further contends that the district court abused its discretion in denying the motion to vacate the judgment, because the judgment is allegedly not final. In that regard the Appellant argues that the judgment did not address all claims against all parties. While it is true that merely labeling a judgment as final does not make it so, the Memorandum Opinion in this case makes it quite clear that Judge Hoyt intended to dispose of all claims against all parties. The opinion states that “all defendants are entitled to the defense of immunity” and “[t]he plaintiff’s case is dismissed in its entirety”. R-247. Moreover, the court held that the facts of the case did not support a “custom and practice” violation or a suit based on a violation of the plaintiff’s federal Constitutional rights. R-248. The court then stated the following in the judgment:

Pursuant to the Memorandum Opinion entered in this case, the plaintiff takes nothing by his suit.

This is a Final Judgment.

R-253. As this Court said in Vaughn v. Mobil Oil Exploration & Prod. Southeast, Inc., 891 F.2d1195, 1197 (5th Cir. 1990), “[t]he intention of the judge is crucial in determining finality”. If the judgment reflects an intent to dispose of all issues before the district court, this Court characterizes that judgment as final. National Association of Government Employees v. City Public Service Board, 40 F.3d 698, 705 (5th Cir. 1984). Thus, there is no ambiguity concerning the finality of the judgment in this case.

In any event, it is totally inconsistent for the Appellant to contend that the judgment is not final when arguing that the district court abused its discretion in refusing to grant a Rule 60(b) motion. By its own terms Rule 60(b) authorizes a court to relieve a party only from a final judgment, order, or proceeding. Obviously, if the judgment in this case were not final, Rule 60(b) would be completely inapplicable. Yet the denial of the Rule 60(b) motion is the only matter brought forth for review on this appeal. Consequently, the Appellant’s argument that the judgment is not final is simply self-defeating.

Finally, Appellant Heimlich contends that the district court abused its discretion in denying the motion to vacate the judgment pursuant to Rule 60(b) (1) and (3). However, the argument presented under this issue does not appear to relate to either reason (1) or (3) and does not present any matter reflecting reversible error. In any event, a motion made for reasons (1) and (3) must be made “not more than one year after the judgment, order, or proceeding was entered or taken”. Fed. R. Civ. P. 60(b). In the instant case the motion to vacate the judgment was filed more than four years after the entry of judgment.

[1] These Appellees were not parties to the newly consolidated Case No. 01-21244 and, therefore, have no knowledge concerning the issues in that case. Accordingly, this brief pertains only to the issues in Case No. 02-20072.

STATEMENT OF JURISDICTION

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

STATEMENT OF THE CASE