Kopatz v. McMullen et al

Filing 83

MEMORANDUM OPINION AND ORDER. Plaintiff's Motion to Dismiss Without Prejudice, liberally construed as a Motion to Alter or Amend Judgment 71 is DENIED to the extent plaintiff requests his claims against defendants Lorie Davis and UTMB be dismissed without prejudice. Signed by District Judge Thad Heartfield on 9/10/20. (ljw, )

Case 1:17-cv-00171-TH-ZJH Document 83 Filed 09/10/20 Page 1 of 3 PageID #: 472

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
BRIAN KOPATZ

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VS.

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ASSISTANT WARDEN VIRGIL
MCMULLEN, et al.,

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CIVIL ACTION NO. 1:17-CV-171

MEMORANDUM OPINION AND ORDER
Pending before this Court is Plaintiff’s Motion to Dismiss Without Prejudice (docket entry
no. 71).1 This Court liberally construes the motion as a Motion to Alter or Amend Judgment
pursuant to Federal Rule of Civil Procedure 59(e) as it was filed within 28 days of entry of the
Partial Judgment entered March 17, 2020 and a Motion to Voluntarily Dismiss as discussed below.
Background
On March 17, 2020, this Court entered a Memorandum Opinion and Order granting Lorie
Davis’ Motion to Dismiss and dismissing plaintiff’s claims against UTMB for failure to state a claim
and as frivolous (docket entry no. 67). In the Partial Judgment entered the same day dismissing
these claims with prejudice, this Court also instructed the Clerk of Court to remove defendants
Virgil McMullen, Sandey Vencent, James Johnson, FNU Weston, Kenneth Nash, Joni M. White,
John Doe, Municipality of Duval and Star County and Pamela Wagner pursuant to plaintiff’s
amended complaint (docket entry no. 68).
Discussion
A motion filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure “calls into
question the correctness of the judgment” and “must clearly establish either a manifest error of law
or fact or must present newly discovered evidence.” See Templet v. Hydrochem, Inc., 367 F.3d 473,
478 (5th Cir. 2004) (quoting In re TransTexasGas Corp., 303 F.3d 571, 581 (5th Cir. 2002)); see

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The Clerk of Court labeled the motion as a Motion to Reconsider.

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Case 1:17-cv-00171-TH-ZJH Document 83 Filed 09/10/20 Page 2 of 3 PageID #: 473

also Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (internal quotations omitted). District
Courts have been given considerable discretion over whether to grant or deny a motion for
reconsideration. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). Moreover,
a Rule 59(e) motion “cannot be used to raise arguments which could, and should, have been made
before the judgment issued. Rosenzqeig v. Azurix Corp. 332 F.3d 854, 63-64 (5th Cir. 2003).
“Reconsideration of a judgment after its entry is an extraordinary remedy that should be used
sparingly.” Templet, 367 F.3d 479.
Plaintiff appears to complain that his claims against defendant Davis and UTMB were
dismissed with prejudice. With respect to this argument, plaintiff has demonstrated neither a
manifest error of law or fact nor presented newly discovered evidence. As to the remaining
defendants, as reflected in the Partial Judgment, those claims were dismissed without prejudice
pursuant to plaintiff’s request and removal of those defendants from his amended complaint.
Finally, the Court notes attached to this Motion to Dismiss Without Prejudice, plaintiff also
attaches another motion entitled “Motion to Drop all Charges.” Motion, pg. 6. Plaintiff states he
seeks to drop all “charges” against all the defendants and Lieutenant Borderlon and requests this
case be closed. Currently pending is defendant Borderlon’s Motion for Summary Judgment (docket
entry no. 82). It is, therefore,
ORDERED that Plaintiff’s Motion to Dismiss Without Prejudice, liberally construed as a
Motion to Alter or Amend Judgment (docket entry no. 71) is DENIED to the extent plaintiff
requests his claims against defendants Lorie Davis and UTMB be dismissed without prejudice. It
is, further,

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Case 1:17-cv-00171-TH-ZJH Document 83 Filed 09/10/20 Page 3 of 3 PageID #: 474

ORDERED that to the extent plaintiff moves to voluntarily dismiss his remaining claims
against defendant Borderlon pursuant to Federal Rule of Civil Procedure 41(a) the motion is
GRANTED. A Final Judgment will be entered separately.
SIGNED this the 10 day of September, 2020.

____________________________
Thad Heartfield
United States District Judge

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