Guerrero v. Turner et al

Filing 32

ORDER denying 31 Motion to Reopen/ Rehearing. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
July 19, 2018

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXA S
HOUSTON DIVISION

David J. Bradley, Clerk

FERNANDO GUERRERO ,

TDCJ #2142911,
Plaintiff,

CIVIL ACTION NO . H-17-0386
MAYOR SYLVESTER TURNER, et

Defendants.
ORDER

Plaintiff Fernando Guerrero filed
Complaint

under

U .S .C .

1983

Prisoner's Civil Rights

(
ucomplaint/
') (
Docket Entry

alleging that four officers emp loyed by the City of Houston

No .

Police Department (
MHPD') used excessive force against him during
'
the course of his arrest . On June 14, 2018, the court granted the
defendants' motion

(
Docket Entry No.

summary

judgment

summary judgment and dismissed this case
Guerrero , who did

motion,

has

Reopen/Rehearing' (
' Docket Entry No.

a month after

filed

respond
uMotion

which is dated more than

final judgment on July

2018.

Because

Guerrero seeks relief from a final judgment, the court construes
the Motion as governed by Rule 60 ( of the Federal Rules
b)

Civil

Procedure . That Motion is denied for the reasons explained briefly
below .

Under Rule 60 ( a district court umay relieve a party
b)

from a final judgment, order,

proceeding

the following

rea sons :

mistake ,
neglect ;

inadvertence,

surprise,

excusable

newly discovered evidence that , with reasonable
diligence, could not have been discovered in time

to move for a new trial under Rule 59(
b);
fraud (
whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;

judgment

void;

the judgment has been
discharged

satisfied, released

or

any other reason that justifies relief.'
'
Fed.

60(
b)

Guerrero seeks relief because he claims

that he was 'never notified that
'

was needed along with

response to Summary Judgement

E
deadlineq when E
hisq response was due.'
'

(
Docket Entry No.

Guerrero argues further that relief

should be granted because he could not get any legal assistance to

help him file
falls

under

response.
Rule

(
Id.). To the extent that his motion

60( 6),
b)(

relief

extraordinary circum stances are present .'
'

F.3d

available

nonly

Hess v . Cockrell, 281

(
5th Cir. 2002) (
citation and internal quotation

marks omitted).
Guerrero's claim that he received no notice or a deadline to

respond

a summary judgment motion is without merit. The court

expressly advised Guerrero

an Order entered on April

2017,

to respond Ato any motion to dismiss or motion for summary judgment
'

within thirty (
30) days of the date in which the defendants mailed
plaintiff his copy , as shown

the defendants' certificate of

service.'
'

(
Docket Entry

(
emphasis

original).

Guerrero was warned

that same paragraph that

nr
flailure . . . to resrond to the defendants' motion within the
time limit mav result in dismissal of this action for want of
prosecution

under

Rule

4l ( ) of
b

Procedure.' (
' Id.) (
emphasis
To

the

assistance
proceed

extent

file

pro âq

exceptional

and

that

the

Federal Rules

original)
Guerrero claims that he lacked legal

response, this is true
does

circumstance

of Civil

standing
that

warrants

a11 prisoners who
alone, constitute

relief

from

final

judgment. Guerrero does not otherwise take issue with the court's
decision

grant the defendants' motion

summary judgment and

he does not show that his case was dismissed in error .
Because Guerrero does not dem onstrate that there is any basis

for relief from the final judgment under Rule 60 (
b),
that

Motion

is ORDERED

Reopen/Rehearing (
Docket Entry

D EN IED .

The Clerk will provide a copy of this Order to the parties .

SIGHRD at Hous
ton, Texas, on t X ith d o G
his
ay f %t , 2 8.
01
-

-

S IM LA KE
UNITED STATES DISTRICT JUDGE