United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DENY PLAINTIFF'S
MOTION FOR RELIEF FROM FINAL JUDGMENT
B . LIBBY UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
Spears 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.
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.
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
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).
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).
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).
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).
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 ...