     Case: 19-30994      Document: 00515502721         Page: 1    Date Filed: 07/24/2020




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

                                                                             FILED
                                                                          July 24, 2020
                                    No. 19-30994
                                  Summary Calendar                        Lyle W. Cayce
                                                                               Clerk


KENYON J. GARRETT,

               Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

               Defendant - Appellee




                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:17-CV-784


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Kenyon Garrett appeals the denial of his
motions to amend or alter the judgment dismissing his claims. For the
following reasons, we AFFIRM the district court.
       Garrett sued the United States for medical negligence and the
failure to obtain informed consent arising from his father’s treatment at


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 19-30994
the Overton Brooks VA Medical Center. The district court dismissed
Garrett’s claims on summary judgment, which we affirmed. Garrett v.
United States, 776 F. App’x 882 (5th Cir. 2019). After receiving the
judgment from this court, Garrett filed several motions under Federal
Rules of Civil Procedure 59 and 60 seeking to amend, alter, or obtain
relief from the district court’s judgment dismissing his case, all of which
the district court denied.
     This court reviews the denial of motions under Rules 59(e) and 60
for abuse of discretion. Rosenblatt v. United Way of Greater Hous., 607
F.3d 413, 419 (5th Cir. 2010); Frazar v. Ladd, 457 F.3d 432, 435 (5th Cir.
2006). A district court abuses its discretion if it “bases its decision on an
erroneous view of the law or on a clearly erroneous assessment of the
evidence.” Kennedy v. Tex. Utilities, 179 F.3d 258, 265 (5th Cir. 1999).
     Garrett contends that the district court erred in denying his Rule
59(e) motion. That rule allows a party to move to alter or amend a final
judgment within twenty-eight days of its entry. FED. R. CIV. P. 59(e). The
district court did not err in denying Garrett’s Rule 59(e) motion because
it was filed on November 19, 2019, nine months after the judgment was
issued on February 19, 2019.
     Garrett also contends that the district court erred in denying his
motions under Rule 60(b)(3) to grant relief from the judgment dismissing
his case because of misconduct by the opposing attorney. “A party making
a Rule 60(b)(3) motion must establish (1) that the adverse party engaged
in fraud or other misconduct, and (2) that this misconduct prevented the
moving party from fully and fairly presenting his case.” Hesling v. CSX
Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005). “The moving party has
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                                       No. 19-30994
the burden of proving the misconduct by clear and convincing evidence.”
Id.
       Garrett claims that the Government’s attorney prevented him from
submitting evidence to the court by improperly threatening Garrett with
sanctions and arrest. Opposing counsel’s statements appear to be in
response to Garrett’s accusation that the Government was falsifying
evidence and misplacing discovery that Garrett had provided. The
specific statements that Garrett objects to are:
       (1)    “If you have proof, bring it forward in the same manner that
              an attorney would be required to do so. I do not want to have
              to seek sanction or penalty but I will do so if you do not cease
              with the disparaging remarks and baseless allegations.”
       (2)    “I can, of course, get the court involved if you keep trying to
              make this mater into something criminal when it clearly is
              not.”
       (3)    “If I cannot locate the exhibits despite an exhaustive search,
              there is a problem.”
       The district court did not abuse its discretion in finding no
misconduct in those statements. Furthermore, Garrett fails to meet his
Rule 60(b)(3) burden because he does not identify the evidence that he
would have submitted absent the supposed misconduct.1
       Garrett also maintains that the district court erred in denying his
motions under Rule 60(b)(1) to correct its ruling declining to accept


       1Garrett need not show that the evidence would have altered the outcome of the case
but must show that he was “prevented . . . from fully and fairly presenting his case.” Hesling,
396 F.3d at 641.
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                               No. 19-30994
Garrett’s own testimony as an expert witness with respect to the
malpractice of “non-medical employees.” Rule 60(b)(1) allows for relief
from a judgment due to “mistake, inadvertence, surprise, or excusable
neglect.” FED. R. CIV. P. 60(b)(1). This court has already held that the
district court did not abuse its discretion in refusing to allow Garrett to
testify as his own expert. Garrett, 776 F. App’x at 883. To the extent that
Garrett raises a new issue with respect to “non-medical employees,” he
fails to identify a mistake or error. The district court denied Garrett’s
motions for relief on this issue because Garrett failed to present any of
his own purported expert opinions in the form of competent summary
judgment evidence. See FED. R. CIV. P. 56(c). The record confirms that the
district court did not abuse its discretion in that assessment.
     Garrett further insists that the district court erred in denying his
motions under Rule 60(b)(2) to submit new evidence. Rule 60(b)(2) allows
relief from a judgment based on “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
Rule 60(b)(2) motion, the “movant must demonstrate: (1) that [he]
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).
     Garrett seeks to submit recordings of conversations that he had
with the Government’s employees in which they allegedly admit that
some treatments listed in Garrett’s father’s medical records were not
actually delivered. Setting aside the issue of due diligence, Garrett fails
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to show that the recordings “clearly would have produced a different
result.” One ground on which the district court dismissed Garrett’s
claims on summary judgment was the lack of any expert testimony that
the alleged medical malpractice caused his father’s injuries. That
conclusion was sufficient to deny Garrett’s motion, and Garrett has not
shown that the additional recording would change it. The district court,
therefore, did not abuse its discretion in denying Garrett’s motions under
Rule 60(b)(2).
     Garrett’s claims under Rule 60(b)(6) also fail. The bases for relief
discussed above under other Rule 60(b) sections cannot also support a
Rule 60(b)(6) claim, as the subsections are mutually exclusive. See Hess
v. Cockrell, 281 F.3d 212, 215 (5th Cir. 2002). And the district court
committed no error by denying Garrett’s motions before receiving an
opposition from the Government because “the court is not required to
grant every unopposed motion.” Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 356 (5th Cir. 1993).
     The judgement of the district court is AFFIRMED.




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