Emerson v. Thaler
Filing
13
ORDER denying 12 MOTION to Alter and Amend Judgment and Relief from Judgment/Order pursuant to Rules 59(e) and 60(b)(1), (4), and (5).(Signed by Judge Ewing Werlein, Jr) Parties notified.(chorace)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTOPHER J. EMERSON,
TDCJ-CID N0.451863,
Plaintiff,
V.
§
§
§
§
§
§
§
RICK THALER,
Defendant.
CIVIL ACTION NO. H-11-2367
ORDER
Plaintiff, proceeding pro se and in f o r m a pauperis, filed a
civil rights complaint pursuant to 42 U.S.C.
§
Courtfs recent holding in Skinner v. Switzer,
1983 and the Supreme
, 131 S.Ct.
U.S.-
1289, 179 L.Ed.2d 233 (2011), seeking an order from this Court
directing U.S. Marshals to seize evidence from his 1986 aggravated
sexual assault convictions in cause numbers 439551 and 439552 and
to submit such evidence to a federal laboratory for DNA testing.
(Docket Entry No.1,
page 4).
On January 27, 2012, the Court
dismissed the complaint pursuant to 28 U.S.C.
§
1915(e)(2)(B).
On
February 8, 2012, plaintiff filed a "Motion to Alter and Amend
Judgment and Relief from Judgment/Order," pursuant to Rules 59 (e)
and 60(b)(1),(4), and (5) of the Federal Rules of Civil Procedure.
(Docket Entry No. 12) .
A Rule 59 (e) motion to alter or amend "'calls into question the
correctness of a judgment.'"
T e m ~ l e tv. HvdroChem Inc., 367 F. 3d
473, 478 (5th Cir. 2004) (quoting In Re Transtexas Gas C o r ~ . ,303
F. 3d 571, 581 (5th Cir. 2002) )
.
Such a 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."
Id. at 479 (citing Simon v. United States, 891 F.2d 1154, 1159 (5th
Cir. 1990) )
.
Instead, "Rule 59 (e) 'serve [s] the narrow purpose of
allowing a party to correct manifest errors of law or fact or to
present newly discovered evidence.'"
I . (quoting Waltman v. Intf1
d
Paper Co., 875 F.2d 468, 473 (5th Cir. 1989))
.
"Relief under Rule
59(e) is also appropriate when there has been an intervening change
in the controlling law."
Schiller v. Physicians Resource Grp., 342
F.3d 563, 567 (5th Cir. 2003). Altering, amending, or reconsidering
a judgment is an extraordinary
sparingly.
remedy that courts should use
Templet, 367 F.3d at 479 (citing Clancv v. Emplovers
Health Ins. Co., 101 F.Supp.2d 463, 465 (E.D.La. June 26, 2000) )
.
A district court may also relieve a party from final judgment
under
Rule
60(b) on the basis
of
(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 fromthe operation of the judgment."
FED. R. CIV. P. 60(b).
Plaintiff contends that dismissal of his civil rights suit was
inappropriate because the Court did not make reference to two
documents in its Memorandum and Order of Dismissal, which plaintiff
filed days before the Memorandum and Order of Dismissal was entered.
(Docket Entry No. 12, pages 4-5) .
Plaintiff contends that these
exhibits show that the checkbooks, which were admitted into evidence
at trial, were fake and that the Court wrongly concluded that one
checkbook belonged to plaintiff and the other was a different
checkbook.
(d,
I . pages 5-6).
Plaintiff also complains that he never indicated that the three
pubic hairs that he wanted to be tested were an issue in the sexual
assault case in cause number 439552, which was tried in the 177th
District Court of Harris County, Texas; he claims that he sought DNA
testing of the three pubic hairs and the checkbooks in the 177th
Criminal District Court instead of the convicting court, i . e . , the
351st Criminal District Court of Harris County, because jurisdiction
was transferred to the 177th Criminal District Court as a result of
the foul treatment plaintiff received in the 351st Criminal District
Court.
(d,
I . pages 6-7) .
The Court reviewed all pleadings and documents filed in this
case, including the checkbook exhibits, before the Court entered its
Memorandum and Order of Dismissal. Any factual error that plaintiff
attributes to the Court with respect to the checkbooks, pubic hairs,
and so on stems from the Court's efforts to liberally construe his
rambling pleadings.
Moreover,
such factual errors are of no
constitutional importance and do not entitle him to relief under
Rules 59 (e) or 60 (b).
As the Court noted in its Memorandum and Order of Dismissal,
plaintiff is not entitled to forensic testing of the checkbooks or
the pubic hairs under state law because he did not file a motion for
such testing in the 351st Criminal District Court of Harris County,
Texas, the court in which he was convicted of sexual assault in
cause number 439551.
(Docket Entry No.10, page 7).
Plaintiff
submitted his request to the 177th Criminal District Court, the
court
whose
judgment
was
reversed
in
cause
number
439552.
Therefore, under state law "plaintiff had no basis upon which to
file a motion for DNA testing of the three pubic hairs[]" or the two
checkbooks.
(d,
I . page 8) .
Accordingly, plaintiff's Motion to Alter and Amend Judgment and
Relief from Judgment/Order pursuant to Rules 59(e) and 60(b) (I),
(4), and (5) (Docket Entry No. 12) is DENIED.
SIGNED at Houston, Texas, on
I
2012.
UNITED S ~ E DISTRICT JUDGE
S
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