     Case: 12-40990      Document: 00512708694         Page: 1    Date Filed: 07/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 12-40990                           July 23, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
WILLIAM DEXTER WHITE,

                                                 Plaintiff-Appellant

v.

RONALD C. FOX; ROBERT E. TAYLOR, Captain; CEILAI RNC OKEYE;
OWEN MURRY, University of Texas Medical Branch, Medical Director;
STEVEN SMOCK, Gulf Coast Cluster Practice Manager; KAMILAH V.
VAUGH; GARRY C. CUMBY; SHALETON L. COOPER; KEITH W. MAYES;
HOWARD K. NIX; V. DODSON; J. O'GUINN; SUSAN BALLIE,
Psychotherapist; B. HORN, Assistant Warden; HERMAN WESTON, JR.,
Assistant Warden; J. W. MOSSBARGER, Assistant Warden; A. VELASQUEZ,
Senior Warden; FRANK RODRIQUEZ, Major; WILLIAM DUGGER, Captain;
RUBY R. KNOOT, Captain; MICHAEL GREEDS, Captain; ADRIAN
BUSTINZA, Captain; JEFFERY NEWMAN, Sergeant; UNIDENTIFIED
BOATMAN, Sergeant,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 6:05-CV-26


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 12-40990

       William Dexter White, Texas prisoner # 545599, proceeding pro se and
in forma pauperis, appeals the district court’s dismissal of his 42 U.S.C. § 1983
complaint following a jury verdict. White originally filed suit alleging, inter
alia, that Major Ronald C. Fox, a prison official in the Michael Unit, located in
the Eastern District of Texas, along with several employees based in the
Darrington Unit, located in the Southern District of Texas, violated his Eighth
Amendment rights by failing to protect him from an assault that took place in
the Darrington Unit shortly after White was transferred there. Specifically,
White claims that Fox deliberately endangered his life by telling another
inmate that White was a “snitch” before his transfer to the Darrington Unit,
thereby making him a target amongst the general population. White claims
that the prison employees in the Darrington Unit ignored his pleas for help or
otherwise failed to protect him from assault. 1 The district court severed and
transferred White’s claims arising from events that occurred in the Darrington
Unit to the United States District Court for the Southern District of Texas, and
White has since filed several motions attempting to consolidate the claims,
which the district court has denied.
       This court has issued two prior decisions involving the instant
proceeding. See White v. Fox, 470 F. App’x 214, *214-23 (5th Cir. 2012); White
v. Fox, 294 F. App’x 955, *956-63 (5th Cir. 2008). In the most recent opinion,
this court affirmed in part and reversed and remanded in part the district
court’s grant of summary judgment in favor of the defendants. White, 470 F.
App’x at *214-23. Concluding, inter alia, that there was a genuine dispute of
material fact regarding White’s deliberate indifference claim against Fox, this
court reversed and remanded for further proceedings. Id. at *223. After a two-

       1  For example, White claims that several members of the Darrington Unit
Classification Committee refused to restrict his housing such that he would be isolated from
African-American inmates, a racial group with whom White claims to have had several
violent encounters.

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                                  No. 12-40990

day jury trial limited to White’s claims against Fox, the jury reached a verdict
that Fox did not act with deliberate indifference. Following the district court’s
dismissal of his complaint, White moved for a new trial. The district court
denied his motion for a new trial.
      White now appeals the dismissal of his complaint and the denial of his
motion for a new trial. He argues that the district court abused its discretion
by failing to allow him to withdraw his consent to the exercise of jurisdiction
by the magistrate judge (“MJ”), the district court abused its discretion by
denying his motion to recuse the MJ as the presiding judge, and the MJ’s denial
of his motion seeking sanctions against the defendants was an abuse of
discretion.   He also argues that the MJ’s refusal to serve defendants in
connection with his failure-to-protect claims relating to events in the
Darrington Unit—where he was assaulted after being transferred—was an
abuse of discretion because res judicata will bar him from bringing suit against
the Darrington defendants in a separate case. Finally, he contends that it was
an abuse of discretion for the MJ to deny his motion for a new trial due to Fox’s
alleged perjury and fraudulent concealment of the perjury. White has also filed
a motion to strike the brief filed by the Appellee.
      The record indicates that White’s consent to proceed before the MJ was
knowing and voluntary. Therefore, because White has shown neither good
cause nor extraordinary circumstances, the district court did not abuse its
discretion by denying White’s motion to revoke his consent to proceed before
the MJ. See 28 U.S.C. § 636(c); Carter v. Sea Land Services, Inc., 816 F.2d
1018, 1020-21 (5th Cir. 1987). White’s argument that the MJ should have been
recused also lacks merit, as his allegations of bias are conclusory and based
solely upon the MJ’s adverse rulings. See 28 U.S.C. § 455(a),(b); Liteky v.
United States, 510 U.S. 540, 555 (1994). The denial of his motion to recuse the
MJ as the presiding judge therefore was not an abuse of discretion. See Brown

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                                 No. 12-40990

v. Oil States Skagit Smatco, 664 F.3d 71, 80 (5th Cir. 2011); Watson v. U.S. ex
rel. Lerma, 285 F. App'x 140, 142 (5th Cir. 2008).
      White’s argument that sanctions should have been awarded pursuant to
Rule 11 of the Federal Rules of Civil Procedure, as there were factual
inaccuracies in the defendants’ pleadings and the defendants willfully failed to
locate a named defendant, does not establish that the MJ’s ruling on this issue
constituted an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 403-05 (1990). Once defendants learned of the factually inaccurate
paragraph in their pleadings, they corrected the error and filed an amended
pleading. Because the MJ provided a reasonable explanation for the
oversight—clerical error—the district court did not abuse its discretion by
denying White’s motion for sanctions due to factual inaccuracies in defendants’
pleadings. See McCrimmon v. Wells Fargo Bank, N.A., 516 F. App’x 372, *376
(5th Cir. 2013); Friends for Am. Free Enterprise Ass’n v. Wal-Mart Stores, Inc,
284 F.3d 575, 577-78 (5th Cir. 2002) (“Generally, an abuse of discretion only
occurs where no reasonable person could take the view adopted by the trial
court.”) (internal quotation marks omitted).
      Regarding his argument that he should have been awarded sanctions
because the defendants failed to locate a named defendant, White fails to
establish that the defendants acted “to harass, cause unnecessary delay, or
needlessly increase the cost of litigation.”    See FED. R. CIV. P. 11(b)(1).
Therefore, the district court’s denial of White’s motion for sanctions due to
failure to locate a defendant was not an abuse of discretion. See Cooter & Gell,
496 U.S. at 403-05; Friends for Am. Free Enterprise Ass’n, 284 F.3d at 577-78.
      White’s argument concerning the MJ’s denial of his requests to serve
additional defendants relating to his claims at the Darrington Unit also lacks
merit, as the district court acted within its discretion to sever the claims
against these defendants, and White’s fear of res judicata is unfounded. Under

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                                   No. 12-40990

res judicata, or claim preclusion, parties are prohibited “from raising any claim
or defense in [a] later action that was or could have been raised in support of
or in opposition to the cause of action asserted in [a] prior action.” United
States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). Claim preclusion is
appropriate where four conditions are met: (1) the parties in a later action must
be identical to (or in privity with) the parties in a prior action; (2) the judgment
in the prior action must have been rendered by a court of competent
jurisdiction; (3) the prior action must have concluded with a final judgment on
the merits; and (4) the same claim or cause of action must be involved in both
suits. Shanbaum, 10 F.3d at 310; Eubanks v. Federal Deposit Ins. Corp., 977
F.2d 166, 169 (5th Cir. 1992).
      A non-party is in privity with a party for res judicata purposes in three
narrowly-defined circumstances: (1) if he has succeeded to the party’s interest
in property; (2) if he controlled the prior litigation; or (3) if the non-party’s
interests were adequately represented by a party to the original suit. Latham
v. Wells Fargo Bank, N.A., 896 F.2d 979, 983 (5th Cir. 1990); Dilworth v. Vance,
95 F.3d 50, *1 (5th Cir. 1996). A non-party is adequately represented “where
a party in the prior suit is so closely aligned to her interests as to be her virtual
representative.”   Eubanks, 977 F.2d at 170.         This requires “more than a
showing of parallel interests—it is not enough that the non-party may be
interested in the same questions or proving the same facts.” Id.
      Here, White’s claims against the Darrington defendants will not be
barred by res judicata, as the Darrington defendants are not a party to nor in
privity with a party to the instant litigation. The Darrington defendants have
not succeeded to Fox’s interest in property, controlled the instant litigation,
nor been adequately represented in the instant litigation. See Eubanks, 977
F.2d at 170; Latham, 896 F.2d at 983. White’s claims against the Darrington
defendants have been severed from the litigation entirely. The two-day jury

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                                     No. 12-40990

trial below addressed only White’s claims against Fox.                 The Darrington
defendants’ interests were never properly placed before the court, nor has any
party to this suit acted as their virtual representative. Thus, White will not be
precluded by res judicata from filing suit against the Darrington defendants in
the Southern District. The district court previously determined that White’s
claims against the Darrington defendants, all of which concern events
occurring in the Darrington Unit in the Southern District, are distinct from his
claims against Fox, which concern events that took place in the Michael Unit
in the Eastern District. 2 Accordingly, the district court did not abuse its
discretion by denying White’s requests to serve the Darrington defendants in
the instant litigation. See Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir.
1998) (finding no abuse of discretion where a magistrate judge from the
Eastern District of Texas severed inmate plaintiff’s claims arising out of events
that occurred at a separate prison unit located in the Southern District)
(internal quotation marks omitted).
      Finally, White’s arguments regarding the denial of his motion for a new
trial also lack merit. Because White argues that he is entitled to a new trial
based on Fox’s alleged perjury and fraudulent concealment of the perjury, his
motion below implicates two provisions of the Federal Rules of Civil Procedure:
Rule 59(a), which provides for a motion for a new trial following a jury trial,
and Rule 60(b)(3), which provides for relief from a judgment due to fraud. See
FED. R. CIV. P. 59(a); 60(b)(3). White is not entitled to relief under either
provision. Because White is not relying upon new matters that arose post-
judgment, the MJ’s denial of relief pursuant to Rule 59(a) was not an abuse of
discretion.    See Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986);


      2   Based on this distinction, the district court concluded that the severance of the
Darrington claims was proper. White does not appeal the severance order but, rather, the
district court’s denial of his requests to serve the Darrington defendants.

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                                 No. 12-40990

Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 164 (5th Cir.
1990). Regarding Rule 60(b)(3), White’s conclusory, speculative allegations of
fraud do not establish that the MJ’s denial of a new trial on this basis was an
abuse of discretion. See Bailey v. Cain, 609 F.3d 763, 767 (5th Cir. 2010); Diaz
v. Methodist Hosp. 46 F.3d 492, 497 (5th Cir. 1995); Longden v. Sunderman,
979 F.2d 1095, 1103 (5th Cir. 1992) (“A Rule 60(b)(3) assertion [of fraud] must
be proved by clear and convincing evidence, and the conduct complained of
must be such as to prevent the losing party from fully and fairly presenting its
case or defense.”).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED. The motion to strike the Appellee’s brief is DENIED.




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