     Case: 09-41129     Document: 00511187787          Page: 1    Date Filed: 07/28/2010




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

                                                  FILED
                                                                            July 28, 2010

                                     No. 09-41129                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JOHNNY PARTAIN, Individually and doing business as Anti-Corruption
Lawsuit Fund,

                                           Plaintiff - Appellant

v.

MARVIN ISGUR, Individually and in his capacity as Bankruptcy Judge;
UNITED STATES OF AMERICA; COMPASS BANK; BBVA USA
BANCSHARES, INC.; BBVA INVESTMENTS, INC.; BBVA USA, INC.; BBVA
BANCOMER, SA; INSTITUCION DE BANCA MULTIPLE; GRUPO
FINANCIERO BBVA BANCOMER; JAMES MAPLES; KATHLEEN MAPLES;
ATLAS TRANSPORTATION, INC.,

                                           Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:07-CV-16


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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      Johnny Partain (“Partain”) appeals the district court’s denial of his
Federal Rule of Civil Procedure Rule 60(b) motion and its striking of his
proposed amended complaint. For the following reasons, we affirm.
                               I. BACKGROUND
      Partain, proceeding pro se, filed a complaint naming United States
Bankruptcy Judge Marvin Isgur as the sole defendant. The complaint asked the
district court to overturn a ruling adverse to Partain which had been entered by
Judge Isgur, the presiding judge in a bankruptcy adversary action where Partain
was a party. Partain’s complaint also sought an injunction removing Judge Isgur
from further participation in the bankruptcy proceedings involving Partain.
Finally, Partain alleged a Bivens claim against Judge Isgur seeking unspecified
damages from him personally, damages which Partain alleged arose out of the
judgment issued by Judge Isgur. More specifically, Partain alleged Judge Isgur
had, by virtue of that ruling and the enforcement of the ruling, caused injury to
him “including but not exclusive to loss of life, property, and civil rights.”
      In response to Partain’s complaint, Judge Isgur filed a motion to dismiss,
contending he was entitled to a dismissal of the action based upon, inter alia,
absolute judicial immunity. After a hearing, the district court judge agreed and
dismissed Partain’s case on October 4, 2007. Approximately one week later,
Partain filed a motion for reconsideration which was denied by the district court.
On October 3, 2008, Partain filed a Rule 60(b) motion indicating that he
disagreed with the district court’s previous determination that Judge Isgur was
entitled to judicial immunity, but stated he did not intend to “reargue the law
in this motion.”
      On January 23, 2009, while Partain’s Rule 60(b) motion was pending and
no order reviving the case and allowing for pleading amendment had been
entered, Partain filed an amended complaint, which purported to add the United
States and several other private parties as defendants. Partain’s various counts


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against the United States and Judge Isgur included negligence, invasion of
privacy, fraud, false imprisonment, conspiracy, and racketeering (RICO), all of
which allegedly gave rise to personal liability on the part of the Judge Isgur and
liability under the Federal Tort Claims Act (“FTCA”) on the part of the United
States. On September 30, 2009, the district court, in two orders, struck the
amended complaint, as having been filed without leave and denied the Rule 60
motion. Partain appeals both the order denying his Rule 60(b) motion and the
district court’s striking of his amended petition.
                                 II. DISCUSSION
      A post-judgment amendment is permissible only when the judgment is
vacated pursuant to Federal Rule of Civil Procedure 59 or 60. Vielma v. Eureka
Co., 218 F.3d 458, 468 (5th Cir. 2000). Thus, only if the district court erred in its
denial of Partain’s Rule 60(b) motion could there be any error in its striking of
Partain’s proposed amended complaint. “The decision to grant or deny 60(b)
relief lies in the sound discretion of the district court and will be reversed only
for an abuse of that discretion.” Provident Life & Accident Ins. Co. v. Goel, 274
F.3d 984, 997 (5th Cir. 2001). Rule 60(b) allows a court to relieve a party from
a final judgment based on:
      (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
      discovered evidence which by due diligence could not have been
      discovered in time to move for a new trial under Rule 59(b); (3)
      fraud . . . misrepresentation, or other misconduct of an adverse
      party; (4) the judgment is void; (5) the judgment has been satisfied,
      released, or discharged . . . ; or (6) any other reason justifying relief.

F ED. R. C IV. P. 60(b). There is nothing in Partain’s motion which suggests that
relief is appropriate under the first five grounds listed in Rule 60(b). Partain is
thus left with attempting to fall within the last possible basis, the general, catch-
all ground of “any other reason that justifies relief.” F ED. R. C IV. P. 60(b)(6).




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      To prevail on a Rule 60(b) motion, a litigant needs to show that there was
something wrong with the original ruling or that whatever was previously wrong
with his claim can be remedied with pleading amendments, and therefore the
litigant should be relieved from the consequences of the court’s ruling. See, e.g.,
Parker v. Bd. of Supervisors Univ. of La. Lafayette, 335 F. App’x 465, 466 (5th
Cir. 2009) (unpublished). Here, Partain demonstrates nothing that suggests that
the district court’s dismissal of Judge Igsar on grounds of absolute judicial
immunity was improper. Neither his Rule 60(b) motion nor his proposed first
amended complaint sets forth any additional facts or legal grounds which would
suggest Judge Isgur is not entitled to absolute judicial immunity. Furthermore,
reopening the case and allowing Partain to add new claims against the United
States would have been futile and a waste of judicial resources, since those
claims also lacked legal merit. The FTCA expressly excludes from its waiver of
sovereign immunity any claim “arising out of . . . false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit or interference with contract rights.” 28 U.S.C. § 2680(h). This means all
of the counts in Partain’s proposed first amended complaint alleging that Judge
Isgur’s actions constituted or resulted in fraud, the denial of due process, false
arrest and/or imprisonment, and interference with Partain’s various property
and contract rights, are expressly precluded from coverage by the FTCA.
      Furthermore, the United States has not, in the FTCA or elsewhere, waived
sovereign immunity with regard to alleged civil rights or constitutional
violations, i.e., violations of due process. See FDIC v. Meyer, 510 U.S. 471,
475–79 (1994); see also Affiliated Prof’l Home Health Care Agency v. Shalala, 164
F.3d 282, 286 (5th Cir. 1999) (“This Court has long recognized that suits brought
against the United States brought under the civil rights statute are barred by
sovereign immunity.”). Finally, to the extent Partain seeks to recover against
the United States under the RICO statute, no waiver of the government’s


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immunity extends to such laws. See McNeily v. United States, 6 F.3d 343, 350
(5th Cir. 1993).
      Similarly, reopening the case and allowing Partain to add new claims
against the other additional defendants named in the proposed amendment
would have also been futile since those claims lacked legal merit as well.
Partain’s claims against those additional defendants are predicated on the same
facts as those asserted in an earlier appeal which was affirmed in the additional
defendants’ favor by this court. See In re Maples (Maples v. Partain), 529 F.3d
670 (5th Cir. 2008). Under these circumstances, the district court did not abuse
its discretion by denying Partain’s Rule 60(b) motion. Nor did the district court
err by striking Partain’s proposed amended complaint.
                              III. CONCLUSION
      For the foregoing reasons, we affirm the district court’s judgment.




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