Barroso, et al. v. State of Texas, et al.
MEMORANDUM OPINION AND ORDER accepting Magistrate Judge Primomo's Memorandum and Recommendation signed by Judge Xavier Rodriguez. Plaintiff's Motion for New Trial and to Take Testimony (docket no. 145) is DENIED. All other pending motions are dismissed as moot. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARCUS E. BARROSO,
BRAD LIVINGSTON, et al.,
Civil Action No. SA-14-CV-421-XR
On this day, the Court considered Plaintiff Marcus Barroso’s Motion for New Trial and
to Take Testimony (docket no. 145), Magistrate Judge John W. Primomo’s Memorandum and
Recommendation (docket no. 159), the parties’ subsequent briefing, and other various pending
motions (docket nos. 162, 164, and 169). After careful consideration, the Court will accept the
Magistrate Judge’s Recommendation, deny Plaintiff’s Motion for New Trial, and dismiss all
other pending motions as moot.
Plaintiff Marcus Barroso was sentenced to time served in state court on March 17, 2014,
for a drug offense. A judgment was signed the next day, on March 18. However, due to an error
in transmitting the judgment, after the sentencing hearing, Barroso remained incarcerated for
over three additional weeks. He was only released after his mother found an attorney—his
counsel in this case—to intervene.
Barroso filed this civil case as a result of these events on May 6, 2014. Docket no. 1.
The case was assigned to Judge Harry Lee Hudspeth. On October 20, 2015, Judge Hudspeth
granted summary judgment in favor of Defendants. Docket no. 126. Judge Hudspeth’s Order
explained that the negligence of a clerical employee of the state district court was responsible for
the underlying events and held that this was insufficient to establish any of the claims brought by
Barroso against the Defendants. Id.
Six days later, Barroso filed a Motion to Disqualify Judge Hudspeth and a Motion for
Reconsideration. Docket no. 129. Judge Fred Biery granted the Motion to Disqualify without
making any finding of bias and ordered that the case be reassigned. Docket no. 131. The case
was randomly assigned to the docket of the undersigned Judge and the Court issued an Order
denying the Motion for Reconsideration. Docket no. 143. Barroso then filed a Motion for New
Trial and to Take Testimony “pursuant to Rule 59(a)(1)(B).” Docket no. 145 at 1. The Court
referred the motion to Magistrate Judge John W. Primomo, who recommended that it be denied.
Docket no. 159.
STANDARD OF REVIEW
Where no party has objected to the Magistrate Judge’s Memorandum and
Recommendation, the Court need not conduct a de novo review of it. See 28 U.S.C. § 636(b)(1)
(“A judge of the court shall make a de novo determination of those portions of the report or
specified proposed findings and recommendations to which objection is made.”). In such cases,
the Court need only review the Memorandum and Recommendation and determine whether it is
either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th
On the other hand, any Memorandum and Recommendation that is objected to requires
de novo review. Such a review means that the Court will examine the entire record and will
make an independent assessment of the law. The Court need not, however, conduct a de novo
review when the objections are frivolous, conclusive, or general in nature. Battle v. United
States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987). In this case, Barroso objected to
the Magistrate Judge’s recommendation, so the Court will conduct a de novo review. Docket no.
First, the Court notes as a preliminary matter that a motion for new trial under Rule 59(a)
is not the proper method for challenging an order granting summary judgment. Instead, the
proper vehicle is a motion filed pursuant to Rule 59(e). Patin v. Allied Signal, Inc., 77 F.3d 782,
785 n. 1 (5th Cir. 1996) (“The Patins’ reconsideration motion was styled as a motion for new
trial, pursuant to Fed. R. Civ. P. 59(a), but was correctly analyzed and decided in the district
court as a Rule 59(e) motion to reconsider entry of summary judgment.”); Harris v. New Werner
Holding Co., Inc., Civ. Ac. No. 3:08-CV-1750-L, 2009 WL 4249240, at *1 (N.D. Tex. Nov. 25,
2009) (stating that when “the court has disposed of the case on a motion for summary judgment,
such a motion is properly classified as one filed pursuant to Rule 59(e)” and citing Patin). Since
this case has been disposed of on an order granting summary judgment, the Court will analyze
the motion under Rule 59(e).
Barroso’s Motion for New Trial is untimely. Federal Rule of Civil Procedure 59(e) states
that “[a] motion to alter or amend the judgment must be filed no later than 28 days after the entry
of judgment.” Fed. R. Civ. P. 59(e). In this case, Judge Hudspeth entered judgment on October
20, 2015. Docket no. 127. Barroso filed his motion to disqualify Judge Hudspeth and his
motion for reconsideration on October 26, 2015. Docket no. 129. The undersigned Judge
considered and denied his motion for reconsideration on December 15, 2016. Docket no. 143.
By his own admission, that motion for reconsideration “sought relief from Judge Hudspeth’s
summary judgment order.” Docket no. 148 at 6. Barroso’s 28-day deadline to file a motion for
new trial expired on November 17, 2015—more than fifty days before this motion was filed on
January 9, 2016. See docket no. 145. Federal Rule of Civil Procedure 6(b)(2) mandates that “[a]
court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and
60(b).” Fed. R. Civ. P. 6(b)(2). Thus, this Court does not have the authority to consider a
second motion for relief from judgment that is untimely filed.
Barroso argues that the motion is timely because he “sought relief from Judge Hudspeth’s
summary judgment order six days after it was entered and has acted on a timely basis ever
since.” Docket no. 148 at 6. However, the fact that he filed his first motion in a timely manner
does not negate the fact that this second motion was filed well beyond the deadline.
In his objections, Barroso takes issue with the fact that Judge Primomo did not consider
the argument that the Motion for Reconsideration would “toll the period for filing a motion for
new trial under Rule 59(b).” Docket no. 161 at 7. However, even if the Court considered the
timeline “tolled” while the Motion for Reconsideration was pending, the Motion for New Trial
would still be untimely. The Motion for Reconsideration was filed 6 days after judgment was
entered and the Motion for New Trial was filed 25 days after this Court’s Order on the Motion
for Reconsideration, for a total of 31 days. See docket nos. 129, 145. Thus, even under
Barroso’s theory that the deadline was tolled, the motion is still not filed within the 28-day
Barroso also claims that an affidavit provided by Defendants in response to the Court’s
inquiry constitutes “newly discovered evidence” under Rule 60(b)(2), and thus, this makes his
motion timely. Docket no. 148 at 6. The affidavit in question is an affidavit from Anthony
Cantu, the Division Chief of Criminal Operations of the Bexar County District Clerk’s Office.
Docket no. 146-1. In it, Cantu explains the process by which a judgment is docketed and how
members of the public can access a judgment. Id. at 1. Then, he discusses what happened with
the judgment at issue in this case. Id. at 1–2.
This affidavit does not constitute “newly discovered evidence” that would entitle Barroso
to relief from the final judgment entered in this case. Federal Rule of Civil Procedure 60(b)(2)
provides that a court may relieve a party from a final judgment if the party produces “newly
discovered evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). To succeed on a motion under
Rule 60(b)(2), a movant must show: “(1) that it exercised due diligence in obtaining the
information; and (2) that the evidence is material and controlling and clearly would have
produced a different result if present before the original judgment.”
Goldstein v. MCI
WorldCom, 340 F.3d 238, 257 (5th Cir. 2003) (citing Provident Life & Acc. Ins. Co. v. Goel, 274
F.3d 984, 999 (5th Cir. 2001)). Barroso has not made this showing. He offers no explanation as
to why he could not have obtained an affidavit from Cantu prior to the deadline for filing a
motion for new trial. See docket no. 148. Moreover, the information contained in the affidavit is
not material and controlling and would not have had bearing on the judgment entered in favor of
Defendants. The March judgment incorrectly counted the time-served credits due to Barroso due
to negligence on the part of a clerical employee of the state district court. Judge Hudspeth based
his rulings on the fact that Barroso could not recover from Defendants based on that negligence.
See docket no. 126 at 6. The information in the affidavit is not material to this analysis, and
Barroso himself stated that “the March Order has no relevance.” Docket no. 145 at 18.
In his objections to Judge Primomo’s Memorandum and Recommendation, Barroso
argues that newly discovered evidence is “anticipated to come” via his pending discovery
motions. Docket no. 161 at 7. This is not sufficient—a movant must show the existence of
evidence that is material and controlling, not hypothesize that he might produce such evidence if
further discovery is conducted.
Barroso also states in his objections that the judgment—and all other orders in this case—
entered by Judge Hudspeth were set aside. Id. at 8. However, as the Court has already explained
for reasons stated in its previous Order, they were not. Docket no. 143 at 6 (“Having concluded
that Judge Hudspeth was not removed for bias, and Plaintiff’s “appearance of bias” argument
also fails, this Court concludes that the orders previously entered in this case are not required to
be set aside and vacated.”). The judgment was not vacated and therefore the deadline began to
run the day it was issued, not at some later point in time.
Finally, Barroso’s Reply also provides a citation to Rule 60(b)(3). Docket no. 148 at 6.
Federal Rule of Civil Procedure 60(b)(3) states that a court may offer relief from a final
judgment due to “fraud . . . , misrepresentation, or misconduct by an opposing party.” Fed. R.
Civ. P. 60(b)(3). However, other than the citation to the rule, Barroso provides no further
information. The Court concludes that Barroso’s Motion for New Trial is untimely filed. This
alone is enough to warrant denial.
Barroso’s Substantive Arguments
But even if the Court had concluded that the Motion for New Trial was timely filed,
Barroso has not shown that he is entitled to relief under Rule 59(e). A motion under Rule 59(e)
“calls into question the correctness of a judgment.” Templet v. Hydrochem, Inc., 367 F.3d 473,
479 (5th Cir. 2004); In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). There are
three grounds for altering or amending a judgment under a Rule 59(e) motion: (1) to correct a
manifest error of law or fact, (2) to account for newly discovered evidence, or (3) to
accommodate an intervening change in the controlling law. Schiller v. Physicians Resource
Group Inc., 342 F.3d 563, 567 (5th Cir. 2003) (internal quotations omitted). Importantly, the
Fifth Circuit has explained that a Rule 59(e) motion “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, 367 F.3d at 478–79; see also Alvarado v. Tex. Rangers, No. EP–03–CA–
0305–FM, 2005 WL 1420846, at *2 (W.D. Tex. June 14, 2005) (“A Rule 59(e) motion is not
proper to re-litigate matters that have been resolved to the movant’s dissatisfaction and plaintiff
cannot have a ‘second bite at the apple’ on the same issues that were previously addressed by the
parties and [the] Court.”).
A Rule 59(e) motion to alter or amend a judgment is an
“extraordinary remedy that should be used sparingly” by the courts. Templet, 367 F.3d at 479.
Barroso has failed to establish any of the three grounds for altering or amending a
judgment under Rule 59(e). In his Motion for New Trial, he presents eight arguments. First, he
states that he is entitled to a new trial because the “March Order was properly filed and entered
on the Court records.” Docket no. 145 at 2. However, the fact that the March judgment was
entered into the Court’s records is irrelevant—it did not permit Defendants to release Barroso.
The March judgment contained an error in Barroso’s time served credits that would have
required Defendants to keep Barroso in jail. See docket no. 145-1. Furthermore, the existence of
the March judgment on the state court’s docket is immaterial. The usual procedure was that it
should have been transmitted to the Bexar County Adult Detention Center and as Judge
Hudspeth explained in his Order, that did not occur in this case. Docket no. 126 at 3. This
negligence served as the crux of Judge Hudspeth’s reasoning. The presence of the judgment on
the docket does not constitute a fact “of such a nature that . . . would probably change the
outcome” in this case. See Infusion Resources, Inc. v. Minimed, Inc., 351 F.3d 688, 696–97 (5th
Cir. 2003). Thus, Barroso is not entitled to relief under Rule 59(e) on these grounds.
Second, Barroso argues that this Court “misinterprets Chief Judge Biery’s Order” and
was incorrect in its determination that Judge Hudspeth’s orders are not required to be set aside.
Docket no. 145 at 4. Barroso seems to contend that because the Court simply used language
about whether or not Judge Hudspeth was biased, as opposed to whether or not he presented a
sufficient affidavit that showed Judge Hudspeth was biased, the Court conducted an “incorrect
inquiry.” Id. However, in determining that Judge Hudspeth was not removed for bias, the Court
necessarily determined that Barroso had not presented a sufficient affidavit.
reasoning from its previous Order stands. A motion under Rule 59(e) cannot be used to “relitigate matters that have been resolved to the movant’s dissatisfaction.” Alvarado, 2005 WL
1420846, at *2.
Next, Barroso again complains that Defendants “currently espouse three irreconcilable
defenses.” Id. at 7. He takes issue with the fact that as discovery has proceeded in this case,
Defendants have evolved in their understanding of the facts and changed their factual
contentions as to exactly what happened in the underlying criminal case. Id. He also argues that
Defendants’ counsel have failed to supplement their disclosures. Id. at 13. But these arguments
do not establish any of the three grounds for relief from judgment; they do not show a manifest
error in law or fact, are not newly discovered evidence, and are not indicative of an intervening
change in the controlling law. See Schiller, 342 F.3d at 567.
Barroso’s motion also argues that he is entitled to a new trial because the Defendants
engaged in “active concealment” of the March judgment. Docket no. 145 at 14. First, Barroso’s
own motion states that he received the judgment during the course of discovery after a
deposition. Id. at 14. Second, this allegation, even if the Court were to conclude it was true,
does not establish any of the grounds for granting a motion for relief from judgment.
He also contends that he is entitled to relief from judgment because the Court did not rule
on his Motion for Default Judgment against the state defendants in this case and because the
Court declined to award him expenses under Rule 37(d)(3). Docket no. 145 at 15. To begin, the
Court did rule on the Motion for Default Judgment and the request for sanctions the same day it
issued its Order granting summary judgment. See docket nos. 127, 128. It denied the motion.
Docket no. 128. Again, Barroso cannot use a Rule 59(e) motion to re-litigate issues the Court
decided against him. See Alvarado, 2005 WL 1420846, at *2. Furthermore, these discovery
issues do not constitute any of the three grounds that would entitle him to the relief he seeks
Barroso’s next arguments fail for the same reason. He states that he is entitled to relief
because the March judgment is an “anomaly” that “has no relevance at all to most of Plaintiffs’
primary claims” and is “not essential to any of Plaintiffs’ primary claims.” Docket no. 145 at 18.
This assertion is confusing, given Barroso’s contrary insistence that the confusion over the
March judgment also entitles him to relief. See docket no. 145 at 7, 14. In any case, it is unclear
how this establishes any of the three grounds that permit this Court to grant him the relief he
seeks. Additionally, Barroso argues that the Court erred in “implicitly ruling that Plaintiffs’
discovery requests were untimely.” Id. at 20. These discovery disputes were already considered
and ruled on by Judge Bemporad. See docket no. 81. Barroso cannot seek to rehash these issues
again here. In any case, the disputes do not constitute any of the accepted grounds for granting
affirmative relief in this case. The Motion for New Trial is denied.
Pending Discovery Motions
In light of the Court’s ruling on the Motion for New Trial, all pending discovery
motions—the Motion to Take Testimony contained in docket no. 145, docket no. 162 (which
was withdrawn), and docket no. 164—are dismissed as moot.
Motion for Sanctions
The state Defendants in this case filed a Motion for Sanctions on June 15, 2016, as a
result of the various discovery motions filed by Barroso’s counsel post-judgment. Docket no.
169 at 3. Rule 11(c) provides that “[i]f . . . the court determines that Rule 11(b) has been
violated, the court may impose an appropriate sanction on any attorney . . . .” Fed. R. Civ. P.
11(c). The Court will decline to order sanctions at this time. However, counsel for Barroso is
warned that any further attempt to conduct discovery in this closed case is prohibited.
The Court ACCEPTS the recommendation of Magistrate Judge John W. Primomo
(docket no. 159). Plaintiff Marcus Barroso’s Motion for New Trial and to Take Testimony
(docket no. 145) is DENIED. All other pending motions are DISMISSED AS MOOT.
It is so ORDERED.
SIGNED this 18th day of August, 2016.
UNITED STATES DISTRICT JUDGE
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