# McIntosh v. Goings

> District Court, E.D. Louisiana · June 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10187860

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** June 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187860. Public record. Not legal advice.