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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                          United States Court of Appeals

                                  No. 17-30519
                                                                   Fifth Circuit

                                                                 FILED
                                Summary Calendar           March 22, 2018
                                                            Lyle W. Cayce
                                                                 Clerk
SHANE M. GATES,

              Plaintiff - Appellant

v.

RODNEY JACK STRAIN, Sheriff, in his official and individual capacity;
WALTER P. REED, District Attorney, in his official capacity; CHARLES M.
HUGHES, JR., Attorney; NATHAN MILLER, Sheriff Deputy; ROGER
GOTTARDI, Sheriff Deputy; BRIAN WILLIAMS, Sheriff Deputy; PHILIP
DUIETT, Lacombe Nurse,

                  Defendants - Appellees
-------------------------

SHANE M. GATES,

              Plaintiff - Appellant

v.

RICHARD SWARTZ, Judge; NICHOLAS F. NORIEA, JR., Assistant District
Attorney; MARIE-ELISE PRIETO, Clerk of Court - St. Tammany; JEFF
LANDRY, Louisiana Attorney General; RONALD GRACIANETTE, Assistant
District Attorney; KATHY SHERWOOD, Captain; KATHRYN LANDRY;
RODNEY STRAIN, St. Tammany Parish Sheriff Office Sheriff, also known as
Jack Strain; ST. PAUL FIRE ; MARINE INSURANCE COMPANY; WALTER
P. REED,

              Defendants - Appellees
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                                  No. 17-30519


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                   USDC Nos. 2:07-CV-6983; 2:13-CV-6425


Before KING, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Shane Gates was arrested by the St. Tammany Parish Sheriff’s Office in
2006. In 2007, he filed this action under 42 U.S.C. § 1983 alleging that the
arresting officers used excessive force and that he was being prosecuted in bad
faith. The case has been stayed since 2008 pending the resolution of the
underlying state criminal charges. He was acquitted of aggravated flight, a
felony, in 2012, and the state then sought to pursue prosecution on the
remaining misdemeanor charges of resisting arrest and driving while
intoxicated. Gates then fled St. Tammany Parish, and has not appeared for
trial on those charges. Gates moved in the district court to lift the stay for the
purpose of entering an injunction preventing the state from prosecuting him
for the pending misdemeanor charges. The state moved to lift the stay for the
limited purpose of dismissing the case with prejudice for failure to prosecute.
The district court determined that Younger abstention precluded an
injunction, and dismissed the case with prejudice. We affirm.
                                        I.
      On November 16, 2006, plaintiff-appellant Shane Gates was pulled over
and arrested by deputies of the St. Tammany Parish Sheriff’s Office. According
to the police report, Deputy Nathan Miller signaled to Gates to pull over after
observing Gates’s vehicle swerve repeatedly while driving on Interstate 12.
The report indicates that Gates then accelerated to 104 miles-per-hour in an
attempt to flee before finally pulling over. Gates then opened his car door and
fell to the ground. Deputy Miller attempted to move Gates away from the
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                                    No. 17-30519
shoulder of the interstate, but, according to the police report, Gates began to
wrestle with Miller. Miller then held Gates down on the hood of his patrol car
while waiting for backup. A few minutes later, Deputies Gottardi and Williams
arrived. Gottardi advised Gates that he was under arrest and attempted to
place him in handcuffs. The report indicates that Gates then began flailing his
arms, and that Deputy Miller administered a one-second burst of pepper spray
to stun Gates and enable the deputies to handcuff him, which they did. While
Gottardi attempted to place Gates in the back of Williams’s patrol car, the
report states that Gates threw his head and body back against Gottardi.
Gottardi took Gates down to the ground, causing Gates’s face to strike the
asphalt and resulting in a one-half inch laceration near his left eye. Gates was
transported to the emergency room for treatment. According to the police
report, medical records from the emergency room indicate that Gates’s blood-
alcohol level was .273 at the time he was admitted.
          Gates’s arrest report cites the following offenses:            driving while
intoxicated, reckless operation of a motor vehicle, open container in a motor
vehicle, aggravated obstruction of a highway of commerce, and resisting an
officer. He was later also charged with aggravated flight from a police officer.
In 2007, Gates filed in federal district court a § 1983 suit alleging that the
deputies used excessive force in arresting him and that he was being
prosecuted in bad faith in state court. He sought damages and an injunction
preventing his prosecution in state court. 1 That action was stayed in 2008,
pending resolution of the underlying criminal charges against Gates. The
action was reopened in 2012 after a state-court jury found Gates not guilty of
aggravated flight, but then stayed again after the district court became aware



      1  The 2007 action was later consolidated with a substantially similar related case
Gates filed in 2013.
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                                  No. 17-30519
of still-pending misdemeanor charges including driving while intoxicated and
resisting an officer. The misdemeanor charges were originally set for trial on
August 31, 2012, but the trial was continued due to Hurricane Isaac. Gates
was then ordered to appear on November 22, 2013, to be served with a new
trial date. When he failed to appear, an attachment was issued for his arrest.
He has failed to appear before the state court since, and his whereabouts are
unknown, even to his counsel.
      On October 20, 2016, defendants filed a motion in the district court
requesting that the stay be lifted for the limited purpose of allowing Gates to
appear for service for his misdemeanor trial and that, should he fail to appear,
his § 1983 action should be dismissed under Fed. R. Civ. P. 41(b) for failure to
prosecute. On December 14, 2016, the district court denied the motion, but
ordered Gates to file, no later than January 23, 2017, a motion explaining why
the Anti-Injunction Act, 28 U.S.C. § 2283, and related abstention doctrine did
not preclude his request for an injunction. The district court warned that
failure to file such a motion would result in dismissal of his case with prejudice
pursuant to Rule 41(b). On January 23, 2017, Gates filed a motion asking the
district court to lift the stay and enter an injunction preventing defendants
from prosecuting him for the pending misdemeanor charges. Defendants then
filed their own motion asking the district court to lift the stay and dismiss
Gates’s case with prejudice for failure to prosecute. After a hearing, the district
court denied Gates’s motion and granted defendants’ motion to dismiss the
case with prejudice. Gates timely appealed.
                                        II.
      Gates first contends that the district court erred by not enjoining the
state from prosecuting him for the pending misdemeanor charges. We review
both the denial of a motion for a permanent injunction and an abstention ruling
for abuse of discretion. Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 518 (5th Cir.
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                                 No. 17-30519
2004) (abstention ruling); St. Paul Mercury Ins. Co. v. Williamson, 332 F.3d
304, 308 (5th Cir. 2003) (denial of motion for permanent injunction). However,
we review de novo both a district court’s legal determination regarding the
applicability of the Anti-Injunction Act, United States v. Billingsley, 615 F.3d
404, 409–10 (5th Cir. 2010), and “whether the requirements of a particular
abstention doctrine are satisfied,” Tex. Ass’n of Bus., 388 F.3d at 518 (quoting
Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d
650, 652 (5th Cir. 2002)).
      The Anti-Injunction Act provides that “[a] court of the United States may
not grant an injunction to stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of its jurisdiction, or
to protect or effectuate its judgments.” 28 U.S.C. § 2283. Section 1983 is an
express authorization from Congress permitting federal courts to enjoin state
proceedings in order to protect federal rights. See Mitchum v. Foster, 407 U.S.
225, 242–43 (1972).     However, § 1983 does not “qualify in any way the
principles of equity, comity, and federalism that must restrain a federal court
when asked to enjoin a state court proceeding.” Id. at 243; see also Younger v.
Harris, 401 U.S. 37, 43–47 (1971). Under the Younger abstention doctrine,
federal courts should generally decline to exercise jurisdiction when: “(1) the
federal proceeding would interfere with an ‘ongoing state judicial proceeding’;
(2) the state has an important interest in regulating the subject matter of the
claim; and (3) the plaintiff has ‘an adequate opportunity in the state
proceedings to raise constitutional challenges.’” Bice v. La. Pub. Def. Bd., 677
F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982)).
      Where those three criteria are satisfied, a federal court may enjoin a
pending state-court criminal proceeding only if: (1) the state-court proceeding
was brought in bad faith or to harass the federal plaintiff; (2) the federal
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                                       No. 17-30519
plaintiff seeks to challenge a state statute that is “flagrantly and patently
violative of express constitutional prohibitions in every clause, sentence, and
paragraph, and in whatever manner and against whomever an effort might be
made to apply it,” or (3) where other “extraordinary circumstances” threaten
“irreparable loss [that] is both great and immediate.” Younger, 401 U.S. at 45,
53–54; accord Moore v. Sims, 442 U.S. 415, 432–33 (1979). 2
       Here, the district court correctly determined that the three criteria that
generally require Younger abstention are satisfied. First, Gates requested that
the district court enjoin his pending state-court criminal proceeding. The
federal proceeding would therefore clearly interfere with an ongoing state
judicial proceeding. Second, the underlying state proceeding concerns the
enforcement of state criminal laws, something in which the state has a strong
interest.     Third, Gates can raise his challenges to the state criminal
proceedings in state court. To the extent that Gates argues that he has been
unsuccessful or is likely to be unsuccessful in raising his constitutional claims
in state court that is irrelevant. The relevant question is whether the would-
be federal plaintiff has the opportunity to raise his federal claims in state court.
See Moore, 442 U.S. at 425 (“[T]he federal court should not exert jurisdiction if
the plaintiffs ‘had an opportunity to present their federal claims in the state
proceedings.’” (quoting Juidice v. Vall, 430 U.S. 327, 337 (1977))); id. at 425–
26 (“Certainly, abstention is appropriate unless state law clearly bars the
interposition of the constitutional claims.”). Gates does not contend that he
cannot raise his constitutional claims in the state court. Accordingly, Younger
abstention precludes an injunction here unless one of the three narrow
exceptions applies.


       2We have recognized that application of the Younger abstention doctrine can also be
waived, Tex. Ass’n of Bus., 388 F.3d at 519, but Gates does not argue that the state has waived
abstention here.
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                                  No. 17-30519
      Gates contends that the state prosecution has been taken in bad faith or
that other extraordinary circumstances warrant enjoining the state criminal
proceedings. Specifically, he argues that: (1) his prosecution for resisting an
officer was instigated by the parish’s insurer, St. Paul-Travelers (whom former
district attorney Walter Reed privately represented and from whom he derived
personal financial benefits, which Gates argues amounted to a Hobbs Act
violation), in order to preclude § 1983 liability for excessive force; (2)
prosecution for the pending misdemeanor offenses would constitute double
jeopardy; and (3) prosecution would violate state and federal speedy-trial laws.
We agree with the district court that Gates’s asserted grounds for an injunction
neither fit within the narrow bad-faith exception nor present the kind of
extraordinary circumstances that justify departure from the general rule of
non-interference.
      To the first point, there is no evidence of bad faith. A prosecution is
taken in bad faith if state officials proceed “without hope of obtaining a valid
conviction.” Perez v. Ledesma, 401 U.S. 82, 85 (1971); accord Ballard v. Wilson,
856 F.2d 1568, 1571 (5th Cir. 1988). “[T]he ‘bad faith’ exception is narrow and
should be granted parsimoniously.” Hefner v. Alexander, 779 F.2d 277, 280
(5th Cir. 1985). It is Gates’s burden to establish actual proof of bad faith.
Hensler v. Dist. Four Grievance Comm. of State Bar of Tex., 790 F.2d 390, 391
(5th Cir. 1986). Here, Gates does not dispute that he was cited for resisting an
officer on the day of his arrest. While he was not charged with resisting an
officer in the original bill of information, two counts of resisting an officer (one
with respect to Deputy Miller and one with respect to Deputy Gottardi) were
added on September 10, 2007, after the district attorney received a statement
from Deputy Miller expressing his belief that Gates should be charged with
resisting an officer. While Gates contends that the Miller statement was
forged, he has not proved that the state’s prosecution for resisting arrest was
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                                       No. 17-30519
initiated without hope of obtaining a valid conviction. 3 Furthermore, while
Gates makes much of his belief that the relationship between District Attorney
Reed and St. Paul-Travelers amounted to a violation of the Hobbs Act, he does
nothing to connect that alleged violation to Younger’s bad-faith exception. He
appears to argue that Reed acted in bad faith by attempting to use the
resisting-arrest charge to negotiate a release of Gates’s § 1983 claims, but that
argument fails. See Town of Newton v. Rumery, 480 U.S. 386, 393–98 (1987)
(upholding enforcement of release-dismissal agreement dismissing criminal
charges in exchange for waver of right to sue under § 1983).
       Gates next contends that his prosecution for the misdemeanor offenses
of driving while intoxicated and resisting an officer would constitute double
jeopardy. Double-jeopardy claims can constitute the kind of extraordinary
circumstances that justify an exception from Younger, see Nivens v. Gilchrist,
444 F.3d 237, 242–43 (4th Cir. 2006); Showery v. Samaniego, 814 F.2d 200, 201
n.5 (5th Cir. 1987), but Gates has not established a likely double-jeopardy
violation. Gates argues that because the state presented evidence relevant to
the driving-while-intoxicated and resisting-arrest charges during his trial for
aggravated flight and the jury acquitted him, the state cannot present that
same evidence again. He relies on Dowling v. United States, 493 U.S. 342
(1990), to argue that because the jury failed to find him guilty beyond a



       3The only evidence that Gates cites that supports his allegation that the Miller letter
was forged is the affidavit of his former attorney, Daniel Abel, in which Abel states that, in
the course of representing Gates, he “acquired personal knowledge” of numerous crimes
committed by the District Attorney’s office, including the “forged ‘victim letter’ purporting to
have been written by former Deputy Sheriff Nathan Miller.” However, he does not establish
any basis for his asserted personal knowledge. He does not assert, for example, that he was
present when the allegedly forged letter was written, that he is familiar with Miller’s
signature and knows that the signature on the letter is not Miller’s, or that anyone told him
that the letter was forged. Accordingly, the statement in the affidavit that the Miller letter
was forged would likely not be admissible as evidence at trial. See United States v. $92,203.00
in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008).
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                                       No. 17-30519
reasonable doubt of aggravated flight, the state cannot now use any of the same
evidence to convince a jury that he is guilty beyond a reasonable doubt of
driving while intoxicated or resisting an officer. See id. at 348–49 (explaining
that double jeopardy does not preclude introducing evidence to establish a fact
a jury previously failed to find beyond a reasonable doubt were, at the
subsequent trial, the jury was only required to find that same fact by a lower
evidentiary standard). But Gates misses Dowling’s broader point. As the
Supreme Court explained, the collateral-estoppel element of double jeopardy
prevents relitigating “an issue of ultimate fact” that has already been
“determined by a valid and final judgment.” Id. at 347–48. But where, as here,
a “prior acquittal did not determine an ultimate issue in the present case,”
double-jeopardy concerns are not implicated.                Id. at 348.     Gates has not
“demonstrate[d] that his acquittal in his first trial represented a jury
determination that he was not” driving while intoxicated or that he did not
resist an officer. 4 See id. at 350. Accordingly, his prosecution for the pending
misdemeanors would not violate the Double Jeopardy Clause and an injunction
is not warranted on this basis.
       Finally, Gates argues that an injunction is warranted because his
prosecution for the pending misdemeanors would violate state and federal
speedy-trial laws. However, the alleged denial of a speedy trial is not itself a
legitimate basis on which to enjoin a state criminal proceeding. See Brown v.
Ahern, 676 F.3d 899, 902–03 (9th Cir. 2012) (holding that federal courts may
not enjoin state criminal prosecution on basis of alleged speedy-trial violation
absent an independent showing of bad faith or other extraordinary



       4As the district court noted, driving while intoxicated and resisting an officer are not
among the essential elements of aggravated flight. Compare La. Rev. Stat. § 14:108.1
(aggravated flight) with La. Rev. Stat. § 14:98 (driving while intoxicated) and La. Rev. Stat.
§ 40:1390 (resisting an officer).
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                                  No. 17-30519
circumstances); Brown v. Estelle, 530 F.2d 1280, 1282–83 (5th Cir. 1976)
(recognizing that, in the context of a pre-trial habeas petition, a federal court
may not normally enjoin state prosecution based on alleged speedy-trial
violation); Moore v. DeYoung, 515 F.2d 437, 446 (3d Cir. 1975) (“[F]ederal
courts should not permit the claimed denial of a speedy trial, presented in a
pre-trial application for habeas, to result in the ‘derailment of a pending state
proceeding.’” (quoting Braden v. 30th Judicial Circuit Court of Ky., 410 U.S.
484, 493 (1973))). Accordingly, this, too, fails to warrant the extraordinary
remedy of enjoining a state criminal proceeding.
                                        III.
      Gates also appeals the district court’s dismissal, with prejudice, of his
claims pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. He contends
that dismissal was inappropriate because any inaction was attributable to the
district court’s stay of the proceedings, at the state’s request, rather than to his
lack of effort in prosecuting his claims. The state responds that the stay of
Gates’s federal suit was due to his failure to appear before the state for a trial
on his pending misdemeanor charges.
      District courts have the authority, pursuant to both their own “‘inherent
power’ . . . to manage their own affairs” and Rule 41(b) of the Federal Rules of
Civil Procedure, to dismiss cases with prejudice for failure to prosecute. Link
v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962); accord Morris v. Ocean Sys.,
Inc., 730 F.2d 248, 251 (5th Cir. 1984). However, because of the severity of the
sanction, “we have stated that it is ‘a drastic remedy to be used only in those
situations where a lesser sanction would not better serve the interests of
justice.’” Morris, 730 F.2d at 251 (quoting Burden v. Yates, 644 F.2d 503, 505
(5th Cir. 1981)). We review a district court’s dismissal with prejudice for abuse
of discretion. Id.


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                                  No. 17-30519
      Dismissal with prejudice is appropriate only where there is “a showing
of (a) a clear record of delay or contumacious conduct by the plaintiff, and (b)
where lesser sanctions would not serve the best interests of justice.” Id. at 252.
Furthermore, we affirm dismissals with prejudice generally only where those
prerequisites are accompanied by “certain ‘aggravating factors,’ such as (1) the
extent to which the plaintiff, as distinguished from his counsel, was personally
responsible for the delay, (2) the degree of actual prejudice to the defendant,
and (3) whether the delay was the result of intentional conduct.” Id. (quoting
Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)).
      Here, there is a clear record of delay and contumacious conduct
attributable to Gates himself. This matter was stayed in the district court for
nearly ten years pending the resolution of Gates’s underlying criminal charges.
For over five years, that stay has been the result of Gates’s failure to appear
before the state to stand trial for his pending misdemeanor charges. We have
previously instructed that, following Heck v. Humphry, 512 U.S. 477 (1994),
district courts should stay § 1983 cases that may implicate the validity of
pending criminal proceedings until those underlying proceedings have run
their course. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995) (“The
court may—indeed should—stay proceedings in the section 1983 case until the
pending criminal case has run its course, as until that time it may be difficult
to determine the relation, if any, between the two.”). Gates’s intentional flight
has prevented resolution of his pending misdemeanor charges and, pursuant
to Mackey and Heck, has accordingly prevented him from prosecuting his
§ 1983 claims. Furthermore, Gates was warned, both in the district court’s
order and at a motions hearing, that failure to appear in state court or establish
the inapplicability of Younger could result in dismissal with prejudice. Under
the circumstances, the district court acted well within its discretion in
concluding that lesser sanctions would be insufficient and dismissing Gates’s
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                                       No. 17-30519
suit with prejudice. See Nottingham v. Warden, Bill Clements Unit, 837 F.3d
438, 442–43 (5th Cir. 2016) (affirming dismissal with prejudice where plaintiff
had received prior warning).
                                              IV.
       Gates also argues that the district erred by denying his request for an
evidentiary hearing and by making factual findings not supported by the
record. Where the application of Younger does not turn on disputed facts, no
evidentiary hearing is required. See Boyd v. Farrin, 575 F. App’x 517, 521 (5th
Cir. 2014) (affirming dismissal of claims for injunctive relief pursuant to
Younger without evidentiary hearing); Mason v. Departmental Disciplinary
Comm., 894 F.2d 512, 516 (2d Cir. 1990); Jacobson v. Village of Northbrook
Mun. Corp., 824 F.2d 567, 570 (7th Cir. 1987); cf. Anderson v. Jackson, 556
F.3d 351, 361 (5th Cir. 2009) (holding that district court did not abuse its
discretion in denying preliminary injunction without holding evidentiary
hearing where it did not rely on disputed facts in determining whether
injunction should issue and where permitted extensive briefing and hear oral
argument). Here, the district court did not abuse its discretion in denying the
injunction without first holding an evidentiary hearing because it did not rely
on any disputed facts in deciding whether to issue the injunction, 5 and there
was extensive briefing as well as numerous hearings below at which the parties
could present their claims.




       5 As noted above, the only disputed evidence arguably relevant to the Younger issue
is the Abel affidavit in which Gates’s former attorney states that the Miller letter was forged.
But, given the above-noted weaknesses in that affidavit, see supra note 3, it did not create a
dispute of fact necessitating an evidentiary hearing. See Ty, Inc. v. GMA Accessories, Inc.,
132 F.3d 1167, 1171 (7th Cir. 1997) (stating that the party seeking an evidentiary hearing
“must show . . . that he has and intends to introduce evidence that if believed will so weaken
the moving party’s case as to affect the judge’s decision on whether to issue an injunction”).
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                                   No. 17-30519
        Gates also contends that the district court made “numerous” erroneous
factual findings. The only alleged error he actually identifies, however, is an
allegedly unsupported statement regarding a blood-alcohol test performed at
the hospital shortly after Gates’s arrest. He argues that there is no competent
evidence of that blood test that would be admissible at trial. However, whether
the evidence of the blood-alcohol test would be admissible at trial is irrelevant
here.    The district court did not rely on that evidence in concluding that
Younger abstention applied and that dismissal with prejudice was warranted.
                                        V.
        Finally, Gates appears to contend that the district court erred by denying
his Rule 60(b) motion for reconsideration. While not explicitly challenging the
denial of the motion, he argues that the district court erred by finding his
motion untimely. But the district court did not deny the motion as untimely.
Rather, the district court analyzed the motion under the rubric of Fed. R. Civ.
P. 60(b) rather than 59(e) based on its determination that the motion had been
filed more than 28 days after the court’s judgment. See Fed. R. Civ. P. 59(e)
(“A motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.”); Benson v. St. Joseph Reg’l Health Ctr., 575
F.3d 542, 547 (5th Cir. 2009) (stating that courts “may treat an untimely 59(e)
motion to alter or amend the judgment as if it were a Rule 60(b) motion”
(quoting Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998)).
But here, Gates’s motion was explicitly titled, and argued, as a “Rule 60
Motion.” Furthermore, even if the district court did err by analyzing the
motion as a Rule 60(b) motion, despite the motion being so styled, any error
was harmless as the district court’s reasons for denying the motion—including
that the motion rehashed arguments previously raised and failed to present
new, previously unavailable evidence—apply with equal force under Rule
59(e). See Templet v. HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004)
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                                 No. 17-30519
(“This Court has held 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.”).
                                      VI.
      For the foregoing reasons, we AFFIRM.




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