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Turner v. Carbett

United States District Court, S.D. Texas, Corpus Christi Division

July 8, 2019

JULIUS TURNER, Plaintiff,
v.
SUSANNA CARBETT, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR RELIEF FROM FINAL JUDGMENT

          JASON B . LIBBY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Julius Turner is a Texas inmate appearing pro se in this civil rights action. Pending is Plaintiff's Motion for Relief from Final Judgment. (D.E. 58). For the reasons stated below, it is respectfully recommended that Plaintiff's motion be DENIED.

         I.BACKGROUND

         Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID), and is presently housed at Wallace Pack Unit in Navasota, Texas. The facts giving rise to Plaintiff's claims occurred in connection with Plaintiff's assignment to the McConnell Unit.

         In his original complaint, Plaintiff sued the following McConnell Unit officials in their individual capacities: (1) Physician Assistant (PA) Corbett; (2) Dr. Kwarteng; (3) PA Echavarry; (4) Dr. Mendez; and (5) Senior Practice Manager Lawson (collectively referred to herein as “Defendants”). Plaintiff claimed he had a serious medical issue in his stomach/intestinal area and that each of the defendants were involved in the ongoing denial of adequate medical care for his serious medical condition. Plaintiff sought injunctive and monetary relief.

         A Spears[1] hearing was held on March 1, 2018, where Plaintiff was given an opportunity to explain his claims. On March 2, 2018, the undersigned ordered service of Plaintiff's complaint on each of the named defendants. (D.E. 14). On April 19, 2018, Defendants filed their answer. (D.E. 30).

         On July 26, 2018, Plaintiff notified the Court that he had designated Dr. Harry Bonnell as “his non-retained testifying expert witness.” (D.E. 36). Thereafter, on August 21, 2018, Defendants filed their Motion for Summary Judgment along with several exhibits. (D.E. 38, 39). Plaintiff filed his response to the summary judgment motion, attaching various exhibits which included Dr. Bonnell's affidavit. (D.E. 43).

         Defendants moved to strike Dr. Bonnell's affidavit. (D.E. 45). On October 15, 2018, the undersigned directed the Clerk of the Court to mail Defendants a copy of all of Plaintiff's exhibits which were attached to his response to the summary judgment motion. (D.E. 46). The undersigned further granted Defendants until October 26, 2018 to file an amended motion to strike Dr. Bonnell's affidavit. (D.E. 46). On that day, Defendants filed their amended motion to strike Dr. Bonnell's affidavit. (D.E. 48). Plaintiff did not file a response.

         On January 16, 2019, the undersigned issued a Memorandum and Recommendation (M&R), which first recommended that the Court grant Defendants' amended motion to strike Dr. Bonnell's affidavit. In recommending the motion to strike be granted, the undersigned concluded that: (1) Dr. Bonnell is a retained expert witness bound by the disclosure requirements of Federal Rule of Civil Procedure 26(a)(2)(B); (2) Dr. Bonnell's expert report failed to meet the disclosure requirements of Rule 26(a)(2)(B), especially considering that Dr. Bonnell only reviewed a small percentage of the medical records when diagnosing Plaintiff's condition; and (3) substantial prejudice would result to Defendants if Plaintiff was allowed to proceed with Dr. Bonnell's expert designation without disclosure of a proper expert report. (D.E. 50, pp. 17-20).

         The undersigned then recommended the District Judge deny in part and grant in part Defendants' Motion for Summary Judgment. The undersigned recommended that the summary judgment motion be denied on the issue of exhaustion based on disputed fact issues as to whether Plaintiff's administrative remedies were available to him. (D.E. 50, pp. 22-30). However, the undersigned recommended Defendants' summary judgment motion be granted because the competent summary judgment evidence established that Plaintiff's Eighth Amendment claims were subject to dismissal and that Defendants were entitled to qualified immunity. (D.E. 50, pp. 30-39). As part of the findings and conclusions, the undersigned found that no genuine issues of material fact existed on the issue of deliberate indifference regardless whether or not Dr. Bonnell's affidavit was considered. (D.E. 50, pp. 37-38).

         On March 14, 2019, Senior District Judge Hilda G. Tagle overruled Plaintiff's objections, adopted the M&R, granted Defendants' motion to strike, granted in part and denied in part Defendants' summary judgment motion, and dismissed this action with prejudice. (D.E. 55). That same day, the district judge entered final judgment in favor of Defendants. (D.E. 56).

         II.DISCUSSION

         On April 23, 2019, this Court received Plaintiff's Motion for Relief from Final Judgment. (D.E. 58). Plaintiff signed and executed this motion on April 15, 2019. (D.E. 58, p. 15). A motion which challenges a prior judgment on the merits is treated either as a motion to alter or amend the judgment under Rule 59 or a motion for relief from judgment under Rule 60(b). Ford v. Elsbury, 32 F.3d 931, 937 (5th Cir. 1994). Plaintiff seeks relief from the final judgment pursuant to Federal Rule of Civil Procedure 60(b). (D.E. 58, p. 1). Even assuming Plaintiff filed his motion on April 15, 2019, the day he signed and executed it, he did not submit it within 28 days after entry of final judgment. It is, therefore, treated as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).

         Rule 60(b) of the Federal Rules of Civil Procedure sets out five specific bases for granting relief from a final judgment: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct of an adverse party; (4) the judgment is void; and (5) satisfaction, discharge, or release of the judgment. Fed.R.Civ.P. 60(b)(1)-(5). In addition, Rule 60(b)(6) provides that a Court ...


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