Morgan v. TDCJ McConnell Unit

Filing 94

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: denying 89 MOTION to Present New Evidence, 91 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, )

Morgan v. TDCJ McConnell Unit

Doc. 94

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DARRON MORGAN,
Plaintiff,
VS.
TDCJ MCCONNELL UNIT, et al,
Defendants.

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§ CIVIL ACTION NO. 2:11-CV-00124
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ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION TO
DENY PLAINTIFF’S MOTION FOR RULE 60(b) RELIEF
Pending before the Court is Plaintiff’s letter presenting a motion for relief under
Fed. R. Civ. P. 60(b). D.E. 89. On February 8, 2013, United States Magistrate Judge B.
Janice Ellington issued a Memorandum and Recommendation (D.E. 91), recommending
that Plaintiff’s Motion for Rule 60(b) Relief be denied.

Plaintiff timely filed his

Objections (D.E. 92) on February 25, 2013.
The Memorandum and Recommendation is based, in part, on the Plaintiff’s failure
to demonstrate “reasonable diligence” to discover the “new evidence” prior to the Rule
59(b) deadline. Fed. R. Civ. P. 60(b)(2). Plaintiff objects because, he asserts, he could
not discover the side effects of the subject medication prior to summary judgment
because Defendants refused to provide that information to him. He has not, however,
provided any evidence of the efforts he took to obtain that information, of whether the
medication was accompanied by a package insert available to him, or how Defendants
inappropriately failed to respond to a proper request for the information.
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Plaintiff’s motion consisted of a verified letter, which contains nothing but selfserving conclusory statements. This does not constitute probative evidence. E.g., United
States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001).
authorities were offered in his Objections.

No additional evidence or

Plaintiff has not shown that this “new

evidence” would have overcome the qualified immunity defense, which requires that the
Defendants’ conduct be objectively unreasonable under the clearly established law and
circumstances. E.g., Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Plaintiff’s
Objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Plaintiff’s Motion for Relief Pursuant
to Rule 60(b) (D.E. 89) is DENIED.
ORDERED this 9th day of August, 2013.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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