Bangmon v. Alexander et al
Filing
70
MEMORANDUM OPINION AND ORDER denying 66 MOTION for Reconsideration (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JERRY LENEZ BANGMON,
Plaintiff,
VS.
DAMON ALEXANDER, et al,
Defendants.
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November 08, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 3:14-CV-0370
MEMORANDUM OPINION AND ORDER
Plaintiff Jerry Lenez Bangmon, an inmate in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), brought this civil rights suit
complaining of an alleged use of force incident and denial of adequate medical care. On
September 5, 2018, the Court dismissed Bangmon’s claims and entered final judgment
(Dkt. 64, 65). On October 8, 2018, Plaintiff executed a motion to reconsider (Dkt. 66)
invoking Federal Rule of Civil Procedure 59(e), which the Court received and docketed
on October 12, 2018. Having reviewed the plaintiff’s filings, the applicable law, and all
matters of record, the Court concludes that the motion should be denied for the reasons
that follow.
I.
BACKGROUND
Plaintiff’s motion to reconsider takes issue with the Court’s opinion dismissing his
claims. He maintains that he previously had presented evidence that he had “body parts”
(in particular, bone fragments) that were removed during his July 2014 discectomy, and
attaches medical records supporting his statement.
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He also continues to assert that his
surgery in 2014 was the result of the alleged use of force by Officer Alexander in
November 2012. Plaintiff also argues that Defendants violated TDCJ’s reporting policy
for use of force incidents and that Dr. Hulipas did not provide the medical care Plaintiff
requested. Finally, Plaintiff argues that in an earlier memorandum opinion (Dkt. 44)
dated February 22, 2018, the Court erred when dismissing his claims against four
defendants for failure to exhaust administrative remedies.
II.
LEGAL STANDARDS
A.
Rule 59(e)
Federal Rule of Civil Procedure 59(e) permits a litigant to file a motion to alter or
amend a judgment. A motion for reconsideration “is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been offered or raised before the
entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).
Instead, Rule 59(e) serves the narrow purpose of allowing a party to bring errors or newly
discovered evidence to the Court’s attention. See In re Rodriguez, 695 F.3d 360, 371 (5th
Cir. 2012). Moreover, “an unexcused failure to present evidence available at the time of
summary judgment provides a valid basis for denying a subsequent motion for
reconsideration.” Templet, 367 F.3d at 479.
A motion under Rule 59(e) must be filed “no later than 28 days after the entry of
judgment.” FED. R. CIV. P. 59(e). The time limit under Rule 59(e) is mandatory and
jurisdictional; it may not be extended by waiver of the parties or by district court ruling.
U.S. Leather, Inc., v. H & W P’ship, 60 F.3d 222, 225 (5th Cir. 1995). Rule 6 expressly
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prohibits an extension of time to act under Rule 59(e). FED. R. CIV. P. 6(b)(2) (“A court
must not extend the time to act under . . . .Rule 59 (b), (d), and (e)”).
Under the prison mailbox rule, a prisoner’s Rule 59(e) motion is deemed filed as
of the date the notice is delivered to prison officials for mailing. Uranga v. Davis, 893
F.3d 282, 285 (5th Cir. 2018); Brown v. Taylor, 829 F.3d 365, 368 (5th Cir. 2016).
B.
Rule 60(b)
A motion under Rule 60(b) is not subject to the 28-day time period imposed by
Rule 59(e). “If the motion was filed within twenty-eight days after the entry of the
judgment, the motion is treated as though it was filed under Rule 59, and if it was filed
outside of that time, it is analyzed under Rule 60.” Demahy v. Schwarz Pharma, Inc.,
702 F.3d 177, 182 n.2 (5th Cir. 2012).
Rule 60(b) is an uncommon means for relief, and “final judgments should not be
lightly reopened.” Lowry Dev., L.L.C. v. Groves & Associates Ins., Inc., 690 F.3d 382,
385 (5th Cir. 2012) (internal citation, alteration, and quotation marks omitted). A Rule
60(b) motion may not be used to raise arguments that could have been raised prior to
judgment or to argue new legal theories. Dial One of the Mid-S., Inc. v. BellSouth
Telecommunications, Inc., 401 F.3d 603, 607 (5th Cir. 2005). Relief under Rule 60(b)(6)
is permitted “[o]n motion and just terms . . . for . . . any other reason that justifies relief,”
but is appropriate “only if extraordinary circumstances are present.” Hesling v. CSX
Transp., Inc., 396 F.3d 632, 642 (5th Cir. 2005) (internal citations and quotation marks
omitted).
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III.
ANALYSIS
Bangmon’s motion does not attach a certificate of service stating when he
delivered it for mailing. See Uranga, 893 F.3d at 285. Nevertheless, even if the Court
were to consider the motion filed on October 8, 2018, the day it was executed by
Bangmon, the motion would be untimely under Rule 59(e) because it was filed more than
twenty-eight days after judgment was entered on September 5, 2018.
Although
Bangmon states that his filing “may possibly be a little late” because he had two surgeries
in September (Dkt. 66, at 9), this Court cannot extend the filing period for a Rule 59(e)
motion. FED. R. CIV. P. 6(b)(2). The Court therefore construes Bangmon’s motion as a
motion for relief under Rule 60. Demahy, 702 F.3d at 182 n.2.
Bangmon’s motion contains only arguments that were raised or could have been
raised prior to judgment. For example, he argues that he presented evidence before entry
of judgment that bone fragments were removed during his discectomy.
The Court
considered the evidence of his discectomy and held that Bangmon had provided nothing
more than conclusory allegations to show that the surgery was the result of Officer
Alexander’s alleged use of force in 2012. See Dkt. 64, at 20-21 (“[a]lthough Plaintiff
asserts that his July 2014 surgery . . . was necessitated by the alleged use of force in
November 2012, he provides no supporting facts”). Plaintiff’s current motion continues
to assert causation, but his attached records provide no support for his assertion.
Bangmon also argues that the Court’s earlier dismissal of four defendants on
exhaustion grounds should be reconsidered because he in fact “reported the use of force”
and “request[ed] medical attention” on the date of the incident (Dkt. 66, at 2). These
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assertions are irrelevant to the requirement that an inmate exhaust TDCJ’s two-step
grievance procedure, which was the basis of the Court’s prior ruling (Dkt. 44).
Bangmon presents no argument warranting relief under Rule 60(b). See Dial One,
401 F.3d at 607; Hesling, 396 F.3d at 642.
IV.
CONCLUSION
The plaintiff’s motion to reconsider (Dkt. 66) is DENIED.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 8th day of November, 2018.
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George C. Hanks Jr.
United States District Judge
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