Kopatz v. McMullen et al

Filing 87

MEMORANDUN OPINION and ORDER that Plaintiff's 85 Motion for Rule 60(b) relief from judgment is denied. Plaintiff's 86 Motion for preliminary injunction, Motion for temporary restraining order is similarly denied. Signed by District Judge Thad Heartfield on 9/1/2021. (bjc, )

Case 1:17-cv-00171-TH-ZJH Document 87 Filed 09/01/21 Page 1 of 2 PageID #: 483

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 for Reconsideration (docket entry no. 85) and
Motion for Preliminary Injunction, Motion for Temporary Restraining Order (docket entry no. 86).
Background
This Court previously denied Plaintiff’s Motion to Dismiss Without Prejudice, liberally
construed as Motion to Alter or Amend Judgment on September 10, 2020 (docket entry no. 83). The
motion was denied to the extent plaintiff requested his claims against defendants Lorie Davis and
UTMB be dismissed without prejudice. The Motion was granted to the extent plaintiff moved to
voluntarily dismiss his claims against defendant Borderlon. A Final Judgment was entered on the
same day (docket entry no. 84).
Plaintiff’s current Motion for Reconsideration seeks reconsideration of this Court’s prior
decision to deny Plaintiff’s Motion to Alter or Amend Judgment (docket entry no. 85). As this
motion was filed more than 28 days after entry of judgment, the motion is properly construed under
Federal Rule of Civil Procedure 60(b).
Discussion
“On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
1.

Mistake, inadvertence, surprise, or excusable neglect;

2.

Newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b);
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Case 1:17-cv-00171-TH-ZJH Document 87 Filed 09/01/21 Page 2 of 2 PageID #: 484

3.

Fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

4.

The judgment is void;

5.

The judgment has been satisfied, released or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or

6.

Any other reason that justifies relief.

FED. R. CIV. P. 60(b).
Plaintiff does not specify the reasoning he seeks a Motion for Reconsideration. A careful
review of the motion reveals plaintiff is just asking this court to reconsider its prior decision.
Plaintiff is using this motion, in effect, to seek a second round of appeals from the dismissal of this
civil action. A Rule 60 motion, however, “is not to be used as a substitute for appeal. . . .” Diaz v.
Stephens, 731 F.3d 370, 377 (5th Cir. 2013) (citing Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402
(5th Cir. 1981)). Plaintiff has failed to present any “extraordinary circumstances” or demonstrate
that he is entitled to relief under Rule 60(b). Accordingly, it is
ORDERED that Plaintiff’s Motion for Rule 60(b) Relief from Judgment (docket entry no.
85) is DENIED. Plaintiff’s Motion for Preliminary Injunction, Motion for Temporary Restraining
Order (docket entry no. 86) is similarly DENIED.
SIGNED this the 1 day of September, 2021.

____________________________
Thad Heartfield
United States District Judge

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