# WEIGANG, OSCAR E. JR. v. UNIVERSITY OF MAINE

> District Court, D. Maine · February 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10211423

## Case

- **Court:** District Court, D. Maine
- **Decided:** February 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

OSCAR E. WEIGANG, JR., )
)
Plaintiff, )
)
v. ) Docket No. 1:21-cv-00271-NT
)
UNIVERSITY OF MAINE, et al., )
)
Defendants. )

ORDER AFFIRMING THE RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On September 16, 2021, Plaintiff Oscar E. Weigang, Jr., acting pro se, filed
with this Court a document entitled “Amendment to Complaint,” listing the case
number for a case that he had filed in 1980, Weigang v. University of Maine, 1:80-cv-
01111-CKC (the “1980 Case”). Compl. (ECF No. 1). In this document, Mr. Weigang
offered no explanation for how this case was related to the 1980 Case or any argument
as to why amendment would be permitted almost forty years after that case was
closed. Instead, he alleged that the Defendants (who are Selectmen of the Town of
Eastbrook) violated his due process rights at two August 2021 Board of Selectmen
meetings. Compl. 2–3. The issue at these meetings appears to be related to property
taxes that Mr. Weigang and Betty Weigang paid beginning in 1996. Compl. Ex. 1
(ECF No. 1-1); Compl. Ex. 3 (ECF No. 1-3). With this submission, Mr. Weigang
attaches what could charitably be construed as a motion for leave to amend his 1980
complaint, given his invocation of Federal Rule of Civil Procedure 15(a)(2). Letter
(ECF No. 1-5).
In an effort to accommodate Mr. Weigang, as a pro se litigant, the Clerk of
Court treated Mr. Weigang’s paperwork as a Complaint (with accompanying exhibits)
and assigned it docket number 1:21-cv-00271-NT. The Clerk’s office then sent Mr.

Weigang a letter that included a handbook designed to explain the litigation process
to pro se litigants. Letter from Clerk’s Office (ECF No. 2). That handbook clearly
states:
As of May 1, 2013, the current filing fee is $402. A credit
card, money order, cashier’s check, personal checks or cash
are acceptable forms of payment. If you are unable to afford
the filing fee and service costs, you may ask the Court to
waive those fees and costs. To request this, you must file
an Application for Leave to Proceed In Forma Pauperis.
The Application for Leave to Proceed In Forma Pauperis
incorporates an affidavit.
U.S. District Court for the District of Maine Information for Pro Se Parties (“Pro Se
Handbook”) 11. The handbook then goes on to provide more details about filling out
an Application for Leave to Proceed In Forma Pauperis (“IFP Application”). Pro Se
Handbook 11.
When he submitted his filing, Mr. Weigang did not tender a filing fee or submit
an IFP Application. So, on September 21, 2021, Judge Nivison ordered Mr. Weigang
pay the filing fee or submit an IFP Application. Order Regarding Filing Fee (ECF No.
3). Judge Nivison also put Mr. Weigang on notice that if he failed to choose one of
these courses of action, the Court could dismiss his case. Order Regarding Filing Fee.
On October 4, 2021, rather than pay the filing fee or submit an IFP Application,
Mr. Weigang moved to rescind Judge Nivison’s September 21 order. Mot. to Rescind
Order Regarding Filing Fee (“Mot. to Rescind”) (ECF No. 5). In this motion, Mr.
his amendment of his complaint in that case was “fully appropriate.” Mot. to Rescind
1–2. He also noted that he had already been permitted to proceed in forma pauperis
in the 1980 Case. Mot. to Rescind 2. Mr. Weigang also attached to his motion some

paperwork related to his filing of a petition for certiorari in relation to the 1980 Case.1
Mot. to Rescind Ex. A (ECF No. 5-1). Judge Nivison denied Mr. Weigang’s motion,
reasoning that the 1980 Case had been closed in 1982 and that Mr. Weigang had “not
provided any basis that would support the reopening of th[at] case.” Order (ECF No.
6).
Mr. Weigang then appealed Judge Nivison’s denial, arguing that Judge
Nivison had erred in concluding that the 1980 Case had been closed. Objs. Per Rule

72 to Magistrate’s Order Regarding Filing Fee (“First Obj.”) (ECF No. 7). It is
difficult to understand the basis for Mr. Weigang’s argument that his case had not
been closed. He mostly references the statute of limitations of the civil rights claims
that he brought in the 1980 Case, arguing that no such statute of limitations exists
or that the statute of limitations had been tolled. First Obj. 2. He also attached similar
paperwork as was attached to his motion to rescind and points to this paperwork to

justify his contention that the 1980 Case was never closed. First Obj. 2; First Obj.

1 Mr. Weigang also filed two other cases in this court in 1980, both of which were closed within
a few weeks of their filing. See Weigang v. McCarthy, 1:80-cv-01112-ETG; Weigang v. Beaulieu, 1:80-
cv-01163-ETG. Based on the Supreme Court paperwork that Mr. Weigang has attached to his motions,
it appears that he sought Supreme Court review in one or more of the three cases that he filed. And it
appears that he filed an interlocutory appeal in the Weigang v. University of Maine case. See Objs. to
Magistrate’s Recommended Decision Based on Pl.’s Failure to Prosecute Exs. 3 & 4 (ECF Nos. 16-4,
16-5). Because these cases are so old, it is difficult to discern what exactly transpired in these cases or
what these petitions for certiorari involved. What is clear, however, is that Mr. Weigang’s petitions for
a writ of certiorari were denied on October 4, 1982, Objs. Per Rule 72 to Magistrate’s Order Regarding
Filing Fee Ex. I (ECF No. 7-1), and, as I explain in greater detail below, all three of his cases were
Exs. I–III (ECF Nos. 7-1, 7-2, 7-3). Finding no error in Judge Nivison’s disposition, I
affirmed his order and ordered Mr. Weigang to pay the filing fee or file an IFP
Application. Order Affirming the Order of the Magistrate Judge (ECF No. 8).

Rather than comply with this order, Mr. Weigang filed an Amended Complaint,
again without paying the filing fee or filing an IFP Application. Am. Compl. (ECF No.
9). It appears that Mr. Weigang filed this Amended Complaint in order to add
additional exhibits involving communications that occurred in 2021 and a deed that
was signed in 2021 to the original Complaint. Am. Compl. Exs. 5–7 (ECF Nos. 9-1, 9-
2, 9-3). Because Mr. Weigang had still failed to pay the filing fee or file an IFP
Application, Judge Nivison issued an order for Mr. Weigang to show cause why he

had failed to comply with the Court’s earlier orders and why his case should not be
dismissed. Order to Show Cause (ECF No. 10).
Mr. Weigang filed an objection to Judge Nivison’s order and asked that these
proceedings be held in abeyance while he sought “resolution of a claim of Clerical
Error” with the Clerk of the Supreme Court. Obj. to Order Disposing of Mot. for
Enlargement of Time, or Abeyance, to Show Cause 1 (ECF No. 13). Again seeing no

error, I affirmed Judge Nivison’s decision. Order Affirming the Order of the
Magistrate Judge (ECF No. 14).
After Mr. Weigang failed to respond to the show cause order, Judge Nivison
issued a decision recommending that Mr. Weigang’s case be dismissed for failure to
prosecute, emphasizing that Mr. Weigang had failed to comply with the Court’s prior
orders to (1) pay the filing fee or file an IFP application, and (2) show cause why he
had not done so. Recommended Decision Based on Pl.’s Failure to Prosecute (ECF No.
15). Mr. Weigang has now filed an objection to Judge Nivison’s recommended decision
in which he continues to make the same arguments as in his previous filings. Objs.
to Magistrate’s Recommended Decision Based on Pl.’s Failure to Prosecute (ECF No.

16).
Mr. Weigang’s principal argument is that the 1980 Case was never closed. That
is not correct. On November 25, 1983, the Defendants in that case moved for summary
judgment, and on October 2, 1984, Judge Cyr granted that motion. Weigang, 1:80-cv-
01111-CKC (Dkt. Nos. 145, 161). Judgment was entered for the defendants against
the plaintiff (Mr. Weigang) on October 3, and the case was closed. Weigang, 1:80-cv-
01111-CKC (Dkt. No. 162).2

The Federal Rules of Civil Procedure only allow for a judgment to be modified
in certain circumstances. See Fed. R. Civ. P. 59; Fed. R. Civ. P. 60. These
modifications can only be made for specific reasons and within a narrow timeframe.
And Mr. Weigang offers no basis for the idea that the judgment in the 1980 Case can
be modified. For this same reason, the complaint in the 1980 Case cannot be
amended. See Ondis v. Barrows, 538 F.2d 904, 909 (1st Cir. 1976) (“Most courts . . .

have held that once a judgment is entered the filing of an amendment cannot be
allowed until the judgment is set aside or vacated under Rule 59 or 60.” (citation
omitted)). For this reason, multiple courts have held that Rule 15 (the rule allowing
for amendments to pleadings) does not apply to closed cases. See id.; Pickens v.

2 Mr. Weigang also makes an argument that the claims in his 1980 case had no statute of
limitations or were tolled. This argument is legally questionable. A § 1983 claim does have a statute
of limitations, and it is based on state law. Ouellette v. Beaupre, 977 F.3d 127, 135 (1st Cir. 2020).
Regardless, however, the statute of limitations for a cause of action is only relevant for initiating a
suit. See Álamo-Hornedo v. Puig, 745 F.3d 578, 579 (1st Cir. 2014). As a result, the statute of
Rogers, Civil Case No. 1:19-cv-00267-MR, 2021 WL 252222, at *1 (W.D.N.C. Jan. 25,
2021) (citing cases).
Even assuming that the 1980 Case could be reopened, Mr. Weigang must seek

leave of the Court to amend. See Fed. R. Civ. P. 15(a)(2). And the rules permit me to
grant such “leave [only] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Mr.
Weigang makes no attempt to explain why he should be granted leave, and I do not
see how leave could be granted to amend a complaint from a case that was closed
thirty-seven years ago in order to add allegations related to conduct that occurred
decades after the case was closed.
For the reasons stated above, I concur with the recommendations of the

Magistrate Judge. The Plaintiff’s objection (ECF No. 16) is hereby OVERRULED. It
is ORDERED that the Order of the Magistrate Judge is AFFIRMED. This case is
DISMISSED.

SO ORDERED.

/s/ Nancy Torresen
United States District Judge
Dated this 23rd day of February, 2022.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211423. Public record. Not legal advice.