Johnny Partain v. Marvin Isgur, et al

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Johnny Partain v. Marvin Isgur, et al

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Case: 09-41129

Document: 00511187787

Page: 1

Date Filed: 07/28/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 28, 2010 N o . 09-41129 S u m m a r y Calendar Lyle W. Cayce Clerk

J O H N N Y PARTAIN, Individually and doing business as Anti-Corruption L a w s u it Fund, Plaintiff - Appellant v. M A R V I N ISGUR, Individually and in his capacity as Bankruptcy Judge; U N IT E D STATES OF AMERICA; COMPASS BANK; BBVA USA B A N C S H A R E S , INC.; BBVA INVESTMENTS, INC.; BBVA USA, INC.; BBVA B A N C O M E R , SA; INSTITUCION DE BANCA MULTIPLE; GRUPO F IN A N C I E R O BBVA BANCOMER; JAMES MAPLES; KATHLEEN MAPLES; A T L A S TRANSPORTATION, INC., Defendants - Appellees

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 7:07-CV-16

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 09-41129

Document: 00511187787 09-41129

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Date Filed: 07/28/2010

J o h n n y Partain ("Partain") appeals the district court's denial of his F e d e r a l Rule of Civil Procedure Rule 60(b) motion and its striking of his p r o p o s e d amended complaint. For the following reasons, we affirm. I. BACKGROUND P a r t a in , proceeding pro se, filed a complaint naming United States B a n k r u p t c y Judge Marvin Isgur as the sole defendant. The complaint asked the d is t r ic t court to overturn a ruling adverse to Partain which had been entered by J u d g e Isgur, the presiding judge in a bankruptcy adversary action where Partain w a s a party. Partain's complaint also sought an injunction removing Judge Isgur fr o m further participation in the bankruptcy proceedings involving Partain. Finally, Partain alleged a Bivens claim against Judge Isgur seeking unspecified d a m a g e s from him personally, damages which Partain alleged arose out of the ju d g m e n t issued by Judge Isgur. More specifically, Partain alleged Judge Isgur h a d , by virtue of that ruling and the enforcement of the ruling, caused injury to h im "including but not exclusive to loss of life, property, and civil rights." In response to Partain's complaint, Judge Isgur filed a motion to dismiss, c o n t e n d in g he was entitled to a dismissal of the action based upon, inter alia, a b s o lu t e judicial immunity. After a hearing, the district court judge agreed and d is m is s e d Partain's case on October 4, 2007. Approximately one week later, P a r t a in filed a motion for reconsideration which was denied by the district court. On October 3, 2008, Partain filed a Rule 60(b) motion indicating that he d is a g r e e d with the district court's previous determination that Judge Isgur was e n tit le d to judicial immunity, but stated he did not intend to "reargue the law in this motion." On January 23, 2009, while Partain's Rule 60(b) motion was pending and n o order reviving the case and allowing for pleading amendment had been e n te r e d , Partain filed an amended complaint, which purported to add the United S t a te s and several other private parties as defendants. Partain's various counts 2

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a g a in s t the United States and Judge Isgur included negligence, invasion of p r iv a c y , fraud, false imprisonment, conspiracy, and racketeering (RICO), all of w h ic h allegedly gave rise to personal liability on the part of the Judge Isgur and lia b ilit y under the Federal Tort Claims Act ("FTCA") on the part of the United S t a t e s . On September 30, 2009, the district court, in two orders, struck the a m e n d e d complaint, as having been filed without leave and denied the Rule 60 m o t io n . Partain appeals both the order denying his Rule 60(b) motion and the d is t r ic t court's striking of his amended petition. II. DISCUSSION A post-judgment amendment is permissible only when the judgment is v a c a t e d pursuant to Federal Rule of Civil Procedure 59 or 60. Vielma v. Eureka C o ., 218 F.3d 458, 468 (5th Cir. 2000). Thus, only if the district court erred in its d e n ia l of Partain's Rule 60(b) motion could there be any error in its striking of P a r t a in 's proposed amended complaint. "The decision to grant or deny 60(b) r e lie f lies in the sound discretion of the district court and will be reversed only fo r an abuse of that discretion." Provident Life & Accident Ins. Co. v. Goel, 274 F .3 d 984, 997 (5th Cir. 2001). Rule 60(b) allows a court to relieve a party from a final judgment based on: (1 ) mistake, inadvertence, surprise, or excusable neglect; (2) newly d is c o v e r e d evidence which by due diligence could not have been d is c o v e r e d in time to move for a new trial under Rule 59(b); (3) fr a u d . . . misrepresentation, or other misconduct of an adverse p a r t y ; (4) the judgment is void; (5) the judgment has been satisfied, r e le a s e d , or discharged . . . ; or (6) any other reason justifying relief. F ED. R. CIV. P. 60(b). There is nothing in Partain's motion which suggests that r e lie f is appropriate under the first five grounds listed in Rule 60(b). Partain is t h u s left with attempting to fall within the last possible basis, the general, catcha ll ground of "any other reason that justifies relief." FED. R. CIV. P. 60(b)(6).

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T o prevail on a Rule 60(b) motion, a litigant needs to show that there was s o m e t h in g wrong with the original ruling or that whatever was previously wrong w i th his claim can be remedied with pleading amendments, and therefore the lit ig a n t should be relieved from the consequences of the court's ruling. See, e.g., P a r k e r v. Bd. of Supervisors Univ. of La. Lafayette, 335 F. App'x 465, 466 (5th C ir. 2009) (unpublished). Here, Partain demonstrates nothing that suggests that t h e district court's dismissal of Judge Igsar on grounds of absolute judicial im m u n it y was improper. Neither his Rule 60(b) motion nor his proposed first a m e n d e d complaint sets forth any additional facts or legal grounds which would s u g g e s t Judge Isgur is not entitled to absolute judicial immunity. Furthermore, r e o p e n in g the case and allowing Partain to add new claims against the United S t a te s would have been futile and a waste of judicial resources, since those c la im s also lacked legal merit. The FTCA expressly excludes from its waiver of s o v e r e ig n immunity any claim "arising out of . . . false imprisonment, false a r r e s t , malicious prosecution, abuse of process, libel, slander, misrepresentation, d e c e it or interference with contract rights." 28 U.S.C. § 2680(h). This means all o f the counts in Partain's proposed first amended complaint alleging that Judge I s g u r 's actions constituted or resulted in fraud, the denial of due process, false a r r e s t and/or imprisonment, and interference with Partain's various property a n d contract rights, are expressly precluded from coverage by the FTCA. Furthermore, the United States has not, in the FTCA or elsewhere, waived s o v e r e ig n immunity with regard to alleged civil rights or constitutional v io la t io n s , i.e., violations of due process. See FDIC v. Meyer, 510 U.S. 471, 4 7 5 ­ 7 9 (1994); see also Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F .3 d 282, 286 (5th Cir. 1999) ("This Court has long recognized that suits brought a g a in s t the United States brought under the civil rights statute are barred by s o v e r e ig n immunity."). Finally, to the extent Partain seeks to recover against t h e United States under the RICO statute, no waiver of the government's 4

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im m u n it y extends to such laws. See McNeily v. United States, 6 F.3d 343, 350 (5 t h Cir. 1993). S im ila r ly , reopening the case and allowing Partain to add new claims a g a in s t the other additional defendants named in the proposed amendment w o u ld have also been futile since those claims lacked legal merit as well. Partain's claims against those additional defendants are predicated on the same fa c t s as those asserted in an earlier appeal which was affirmed in the additional d e fe n d a n t s ' favor by this court. See In re Maples (Maples v. Partain), 529 F.3d 6 7 0 (5th Cir. 2008). Under these circumstances, the district court did not abuse it s discretion by denying Partain's Rule 60(b) motion. Nor did the district court e r r by striking Partain's proposed amended complaint. III. CONCLUSION F o r the foregoing reasons, we affirm the district court's judgment.

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