McIntosh v. Goings

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAMES MCINTOSH CIVIL ACTION

VERSUS No. 21-1719

ROBERT GOINGS, ET AL. SECTION I

ORDER & REASONS

Before the Court are two motions filed by plaintiff, James McIntosh

(“McIntosh”). The first motion1 “seeks an amendment” to the Court’s recently filed

judgment, which the Court entered after granting a motion for summary judgment

in favor of defendants with respect to McIntosh’s § 1983 claim. The second motion2

seeks leave to file a reply memorandum in support of McIntosh’s motion to amend.

The Court will grant McIntosh leave to file his reply memorandum, which the Court

has considered with respect to this order. The Court denies McIntosh’s motion to

amend the judgment.

I.

McIntosh, an inmate at Rayburn Correctional Center (“RCC”) in Angie,

Louisiana, previously filed a petition3 for damages in state court, alleging

constitutional violations pursuant to 42 U.S.C. § 1983, as well as state law tort claims.

As explained in detail in the Court’s prior order, McIntosh maintains that the

1 R. Doc. No. 68.

2 R. Doc. No. 74.

3 R. Doc. No. 1-1.

defendants attacked him without provocation, and afterwards they instituted

unjustified prison disciplinary proceedings against McIntosh in which he was

ultimately found guilty of the charges.4

Defendants removed5 the state court action to this Court and eventually filed

a motion6 for summary judgment, arguing that Heck v. Humphrey, 512 U.S. 477

(1994), bars McIntosh’s § 1983 claim based on McIntosh’s prison disciplinary

convictions.7 The Court agreed.8 The Court then entered a judgment, dismissing

McIntosh’s § 1983 claim with prejudice “to its being asserted again until the Heck

conditions are met.”9 The Court dismissed McIntosh’s state law claims without

prejudice to their being timely asserted in state court.10

Overall, McIntosh now seeks two forms of relief. First, with respect to his

requested amendment to the judgment, McIntosh “prays that this Court stay rather

than dismiss this matter with prejudice.”11 Second, for the first time in his reply

memorandum, McIntosh requests that the Court remand his state law claims to

Louisiana court.

4 R. Doc. No. 66, at 1–10.

5 R. Doc. No. 1.

6 R. Doc. No. 43.

7 R. Doc. No. 43-1, at 17.

8 R. Doc. No. 66.

9 R. Doc. No. 67, at 1.

10 Id. at 2.

11 R. Doc. No. 68.

II.

A.

McIntosh “seeks an amendment” to the Court’s judgment “pursuant to FRCP

59 and 60[.]”12 McIntosh does not reference a specific provision of either Rule 59 or

Rule 60, so the Court must consider whether Mcintosh’s request is a motion “to alter

or amend,” pursuant to Rule 59(e), or a motion for “relief from judgment,” pursuant

to Rule 60(b). See, e.g., Jones v. Wells Fargo Bank, N.A., No. 17-8712, 2019 WL

5785037, at *1 (E.D. La. Nov. 6, 2019) (Feldman, J.) (explaining that courts must

consider motions challenging a judgment under Rule 59(e) or Rule 60(b)).

“The difference in treatment is based on timing. If the motion is filed within

twenty-eight days of the judgment, then it falls under Rule 59(e)” rather than Rule

60(b). Thompson v. Dep’t of the Interior United States, No. 16-17542, 2018 WL

4909910, at *2 (E.D. La. Oct. 10, 2018) (Barbier, J.) (citing Lavespere v. Niagara

Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990)); see also 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 judgment.”). “[I]f the motion is filed more than twenty-eight days

after the judgment, but not more than one year after the entry of judgment, it is

governed by Rule 60(b).” Thompson, 2018 WL 4909910, at *2.

12 R. Doc. No. 68, at 1.

The Court entered its judgment on April 12, 2022.13 McIntosh filed the motion

to amend on April 13, 2022.14 Therefore, the Court will treat McIntosh’s motion as

one “to alter or amend,” pursuant to Rule 59(e).15

B.

“A Rule 59(e) motion ‘calls into question the correctness of a judgment.’”

Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re

Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). It “serve[s] the narrow

purpose of allowing a party to correct manifest errors of law or fact or to present newly

discovered evidence,” and it is “an extraordinary remedy that should be used

sparingly.” Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (quoting

Templet, 367 F.3d at 479). “Relief under Rule 59(e) requires a showing of (1) an

intervening change in controlling law; (2) new evidence not previously available; or

(3) the need to correct a clear legal error or to prevent manifest injustice.” Farquhar

v. Steen, 611 F. App’x 796, 800 (5th Cir. 2015) (citing In re Benjamin Moore & Co.,

318 F.3d 626, 629 (5th Cir. 2002)).

Further, Rule 59 motions should not be used to relitigate old matters, raise

new arguments, or submit evidence that could have been presented earlier in the

proceedings. Templet, 367 F.3d at 479; Rosenblatt v. United Way of Greater Houston,

607 F.3d 413, 419 (5th Cir. 2010) (“a motion to alter or amend the judgment under

13 R. Doc. No. 67.

14 R. Doc. No. 68.

15 Moreover, McIntosh does not request relief that is recognized under another

provision of the rules. See, e.g., Fed. R. Civ. P. 59(a) (providing grounds for a new

trial).

Rule 59(e) ‘must clearly establish either a manifest error of law or fact or must

present newly discovered evidence’ and ‘cannot be used to raise arguments which

could, and should, have been made before the judgment issued’”) (citing Rosenzweig

v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003)) (quoting Simon v. United States,

891 F.2d 1154, 1159 (5th Cir. 1990)). The Court must balance two important judicial

imperatives in deciding a motion for reconsideration: “(1) the need to bring the

litigation to an end; and (2) the need to render just decisions on the basis of all the

facts.” Templet, 367 F.3d at 479.

III.

A.

The Fifth Circuit has made clear “the effect of a dismissal of a civil rights claim

under the holding of Heck.” Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).

“When a claim comes within the parameters of the Heck teachings, it is not cognizable

under 42 U.S.C. § 1983 until the plaintiff can show that the conviction ‘has been

reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.’” Id. (quoting Heck v. Humphrey, 512 U.S.

477, 487 (1994)). A dismissal pursuant to Heck “do[es] not preclude a later claim

meeting the preconditions for suit.” Id. Accordingly, the Fifth Circuit’s “preferred

order of dismissal” should read that a plaintiff’s “claims are dismissed with prejudice

to their being asserted again until the Heck conditions are met.” Id. The Fifth Circuit

has reaffirmed that dismissals containing Johnson’s preferred language allow

plaintiffs to “reassert their claims upon satisfying the Heck conditions.” Cook v. City

of Tyler, Texas, 974 F.3d 537, 539 (5th Cir. 2020). “That is, a Heck dismissal is a

dismissal without prejudice.” Id.

McIntosh’s motion fails to identify any authority indicating that the Court

erred in dismissing McIntosh’s § 1983 claim with prejudice “to its being asserted

again until the Heck conditions are met.”16 First, McIntosh cites to Wallace v. Kato,

549 U.S. 384 (2007). McIntosh makes the argument that “[i]f a plaintiff files a false-

arrest claim before he has been convicted (or files any other claim related to rulings

that will likely be made in a pending or anticipated criminal trial), it is within the

power of the district court, and in accord with common practice, to stay the civil action

until the criminal case or the likelihood of a criminal case is ended.” Id. at 393–394

(emphasis added). Here, unlike in Wallace, the prison disciplinary proceedings which

formed the basis for the Court’s dismissal under Heck resulted in disciplinary

convictions, and the disciplinary charges have already been adjudicated. If

McIntosh’s prison disciplinary charges had not yet been adjudicated, a stay would be

appropriate. However, that is not the posture of McIntosh’s case.

Next, McIntosh cites to Hopkins v. Ogg, 783 F. App’x 350, 355 (5th Cir. 2019),

which is readily distinguishable. In Hopkins, the district court, acting sua sponte,

dismissed a pretrial detainee’s § 1983 action after concluding that the plaintiff ’s

claims were barred by Heck. Id. at 352–353. The Fifth Circuit observed that “[i]f a

pretrial detainee brings claims that may ultimately be barred by Heck, the best

16 R. Doc. No. 67, at 1.

practice is for the district court to stay the proceedings until the pending criminal

case is resolved.” Id. at 355 (emphasis added).17 Again, unlike Hopkins, McIntosh’s

prison disciplinary charges had already been adjudicated when the Court considered

the defendants’ motion for summary judgment.18 The fact that McIntosh may still

pursue his appeal of the hearing board’s decisions in state court does not change

McIntosh’s current inability to “prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus[.]” Heck, 512 U.S. at 486–487. McIntosh’s

motion to amend the judgment presents no manifest error of law or fact. Nor does

the motion identify any newly discovered evidence.

Moreover, McIntosh had ample opportunity to raise his argument for a stay,

but he failed to do so. On February 23, 2022, the Court held a telephone status

conference with the parties.19 At the status conference, defendants requested

17 The Fifth Circuit noted that “Hopkins was convicted of aggravated sexual assault

of an elderly or disabled victim on March 8, 2019.” Id. at 355. At the time of the Fifth

Circuit’s opinion, “Hopkins’s appeal [was] currently pending in state court.” Id.

Accordingly, in the Fifth Circuit’s view, “the district court’s Heck ruling was

premature, and the court should have stayed Hopkins’s § 1983 lawsuit until his

pending criminal case was resolved.” Id.

The district court entered its order dismissing Hopkins’ § 1983 action on December

15, 2017. See Hopkins v. Ogg, No. 17-3423, 2017 WL 8790982 (N.D. Tex. Dec. 15,

2017). Therefore, the district court dismissed sua sponte Hopkin’s § 1983 action

fourteen months before his conviction was entered in state court.

18 R. Doc. No. 66, at 8–9.

19 R. Doc. No. 30 (minute entry).

permission to file a motion for summary judgment.20 McIntosh’s counsel informed

the Court that “an appeal is pending with respect to plaintiff ’s prison disciplinary

adjudications underlying this litigation,” and in McIntosh’s view “a stay of this case

would be appropriate.”21 After conferring with defendants, defense counsel later

agreed that McIntosh did have “two proceedings pending that concern his prison

disciplinary adjudications,” but that “defendants [did] not consent to a stay of the

above-captioned matter.”22 In that posture, the Court permitted defendants to file a

motion for summary judgment.23

McIntosh failed to raise any argument in opposition to defendants’ motion for

summary judgment that the Court should stay this matter.24 Because McIntosh was

clearly aware of his preference for a stay before the Court ruled on defendants’ motion

for summary judgment, McIntosh’s Rule 59(e) motion “‘cannot be used to raise

arguments which could, and should, have been made before the judgment issued[.]’”

Rosenblatt, 607 F.3d at 419 (5th Cir. 2010).

B.

For the first time in his reply brief, McIntosh requests that the Court remand

his state law claims rather than letting those claims remain as dismissed without

20 Id.

21 Id.

22 Id.

23 Id.

24 See generally R. Doc. No. 49 (McIntosh’s opposition to defendants’ motion for

summary judgment). Although McIntosh did generally reference the fact that he

appealed the disciplinary board’s findings, see id. at 1, 12, he presented no argument

that the Court should stay this case based on his appeal. Id.

prejudice.25 “The general rule in the Fifth Circuit and this District is that arguments

raised for the first time in a reply brief are waived.” Jones v. Gusman, 515 F. Supp.

3d 520, 540 (E.D. La. 2021) (Africk, J.) (collecting cases). As McIntosh did not raise

this argument in his initial motion to amend or memorandum in support,26 such

argument is waived.

Even if McIntosh had raised this issue in his instant motion, his remand

argument would nevertheless fail for two reasons. First, the motion for summary

judgment clearly included McIntosh’s state law claims within the ambit of

defendants’ Heck argument.27 In opposing summary judgment, McIntosh never

requested28 that this Court remand his state law claims, and this argument “could,

and should, have been made before the judgment issued[.]’” Rosenblatt, 607 F.3d at

419 (5th Cir. 2010).29

Second, McIntosh bases his remand request on Enochs v. Lampasas Cty., 641

F.3d 155 (5th Cir. 2011), which is instructive, but not in the way McIntosh imagines.

In Enochs, the defendants removed the case—which initially involved federal and

state law claims—to federal district court, and the plaintiff subsequently filed an

25 R. Doc. No. 74-2, at 1.

26 See generally R. Doc. No. 68 (motion); R. Doc. No. 68-2 (memorandum).

27 R. Doc. No. 43-1, at 23 (“Since [McIntosh]’s state law claims arise out of the same

facts that resulted in his convictions, and the conviction has not been reversed or

invalidated, [McIntosh]’s state law claims against Defendant [Louisiana Department

of Public Safety and Corrections] are barred by Heck.”).

28 See generally R. Doc. No. 49 (McIntosh’s opposition to summary judgment).

29 Indeed, McIntosh’s failure to raise this argument in opposition to the defendants’

motion for summary judgment and his failure to raise the issue at the outset of his

motion to amend results in a Russian nesting doll of waiver.

unopposed motion to amend his complaint, thereby deleting all federal claims. 641

F.3d at 157. The plaintiff also filed a separate motion to remand. Id. The district

court granted the motion to amend, but it denied the motion to remand. Id. at 158.

The case then proceeded with only Texas state law claims, and the district court

eventually entered summary judgment in favor of the defendants. Id. On appeal,

the Fifth Circuit held that that the district court erred in denying the motion to

remand when no federal claims remained in the case because “the district court failed

to analyze the statutory and common law factors that are relevant to the question of

its jurisdiction over pendant state law claims.” Id.; see also id. at 163.

Enochs is factually inapposite as the court in that case exercised jurisdiction

over the state law claims and dismissed them on a motion for summary judgment. In

contrast, McIntosh’s state law claims of negligence and respondeat superior were

dismissed without prejudice “to their being timely asserted in state court,”30 and

McIntosh may take that path. This Court noted that “the general rule in the Fifth

Circuit is to dismiss state law claims when the federal claims to which they are

pendent are dismissed.’”31 The Court also noted the criteria set forth in 28 U.S.C. §

1367(c) and the common law factors of “‘judicial economy, convenience, fairness, and

comity.’”32 These are the exact same principles that the Fifth Circuit discussed in

Enochs, and McIntosh identifies no portion of that opinion indicating any error here.

30 R. Doc. No. 67, at 2.

31 R. Doc. No. 66, at 20 (quoting Parker & Parsley Petroleum Co. v. Dresser Indus.,

972 F.3d 580, 585 (5th Cir. 1992)).

32 R. Doc. No. 66, at 21 (quoting Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir.

2008)).

IV.

All things considered, the Court’s judgment incorporates Johnson’s®* preferred

dismissal language “nearly verbatim[.|” Cook, 974 F.3d at 539. McIntosh

misunderstands the Court’s judgment, which permits McIntosh to pursue his § 1983

claim once “the Heck conditions are met.”°4 McIntosh has offered no reason for the

Court to conclude that the extraordinary remedy of relief pursuant to Rule 59(e) is

warranted. Accordingly,

IT IS ORDERED that MclIntosh’s motion®® for leave to file a reply

memorandum is GRANTED.

IT IS FURTHER ORDERED that McIntosh’s motion? to amend the

judgment is DENIED.

New Orleans, Louisiana, June 3, 2022.

LANCE M.AFRICK

UNITED STATES DISTRICT JUDGE

33 Johnson v. McElveen, 101 F.3d 428, 424 (5th Cir. 1996).

34 R. Doc. No. 67, at 1.

35 R. Doc. No. 74.

36 R. Doc. No. 68.

11