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Spence v. Harrison-Dunn ( 2021 )


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  • Case: 20-20498     Document: 00516098900         Page: 1     Date Filed: 11/18/2021
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
November 18, 2021
No. 20-20498
Summary Calendar                        Lyle W. Cayce
Clerk
Kenneth Spence,
Plaintiff—Appellant,
versus
Hilary Harrison-Dunn; Ruth Bailey; Shana Moss,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1660
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Kenneth Spence, as a pretrial detainee, filed a
    42 U.S.C. § 1983
    complaint that was dismissed by the district court as barred by the three-
strikes provision of
    28 U.S.C. § 1915
    (g). The court also denied a subsequent
Federal Rule of Civil Procedure 59(e) motion. His appeal from that judgment
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20498      Document: 00516098900           Page: 2    Date Filed: 11/18/2021
No. 20-20498
was dismissed for want of prosecution for failure to pay the filing fee. Spence
then filed a motion for relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b)(4). The district court denied the motion, and Spence now
appeals.
Spence argues that the district court’s underlying judgment was void
because he had been adjudicated incompetent to stand trial at the time he
filed the instant complaint. He asserts that, therefore, the district court erred
in denying his in forma pauperis (IFP) motion and dismissing the complaint
without first appointing someone to protect his interests as set forth in
Federal Rule of Civil Procedure 17(c).
Pursuant to Rule 60(b)(4), a district court may grant relief from a final
judgment based on enumerated grounds, including a void judgment. FED.
R. CIV. P. 60(b)(4). Only lack of jurisdiction or a due process violation that
deprives a party of notice or the opportunity to be heard will render a district
court judgment void. Norris v. Causey,
    869 F.3d 360
    , 366 (5th Cir. 2017).
The denial of a Rule 60(b)(4) motion is reviewed de novo. Jackson v. FIE
Corp.,
    302 F.3d 515
    , 521-22 (5th Cir. 2002).
An incompetent person, for purposes of Rule 17(c), is a “person
without the capacity to litigate under the law of his state of domicile.”
Thomas v. Humfield,
    916 F.2d 1032
    , 1035 (5th Cir. 1990). “In Texas, the
standard is whether individuals, by reason of mental or bodily infirmity, [are]
incapable of properly caring for their own interests in the litigation.”
Magallon v. Livingston,
    453 F.3d 268
    , 271 (5th Cir. 2006) (internal quotation
marks and citation omitted).
Although Spence had been found incompetent to stand trial in his
criminal proceedings, he was not necessarily incompetent for purpose of Rule
2
Case: 20-20498       Document: 00516098900          Page: 3    Date Filed: 11/18/2021
No. 20-20498
17. See
    id.
     Further, the record evidence does not establish that he was
incompetent under Rule 17. See
    id. at 271-72
    .
Regarding his due process claim, Spence concedes that he received
notice of the court’s orders in accordance with due process and argues only,
without foundation, he was not allowed to present objections because of his
mental illness.    Additionally, the dismissal of Spence’s complaint was
without prejudice, and Spence was advised that he could move to reinstate
the case after paying the filing fee. Thus, the record does not support his
claim that he was deprived of the opportunity to be heard. Accordingly,
Spence did not establish a jurisdictional or due process violation that
rendered the judgment void, and the district court did not err in denying the
motion. See Norris, 869 F.3d at 366.
Moreover, regardless whether Spence was incompetent and had the
capacity to file the complaint, he abandons any challenge to the finding that
he was prohibited from doing so pursuant to the § 1915(g) bar. See Brinkmann
v. Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987).
Accordingly, the judgment of the district court is AFFIRMED.
Spence is REMINDED that, because he has accumulated at least
three strikes under § 1915(g), he is barred from proceeding in forma pauperis
in any civil action or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. He is
also WARNED that, regardless of the § 1915(g) bar, any frivolous,
repetitive, or otherwise abusive filings that he files will invite the imposition
of additional sanctions, which may include dismissal, monetary sanctions,
and restrictions on his ability to file pleadings in this court and any court
subject to this court’s jurisdiction.
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