IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30380

Summary Calendar

MONTIE BANTA MONTGOMERY,

Plaintiff-Appellant

v.

GARY SEXTON, In his official capacity as Sheriff; PAUL SMITH; STEVE

RISNER, as Warden of Bayou Dorcheat Correctional Center; JOHN DOE, as

Assistant Warden of Bayou Dorcheat Correctional Center; GENE HANSON, as

a Deputy of Bayou Dorcheat Correctional Center; JOHN LEWIS, As a Captain

of Bayou Dorcheat Correctional Center; BUSTER FLOWERS, as a Deputy of

Webster Parish Sheriff’s Office; JANE DOE, as Nurse of Bayou Dorcheat

Correctional Center; CHUCK DOE, as a Deputy of Bayou Dorcheat Correctional

Center; JERRY MCCOY; UNKNOWN SHERIFF’S DEPUTIES; UNKNOWN

CORRECTIONAL OFFICERS; UNKNOWN OFFICIALS; SHERIFF’S OFFICE

WEBSTER PARISH; BAYOU DORCHEAT CORRECTIONAL CENTER,

Defendants-Appellees

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 5:08-CV-1086

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-30380 Document: 00511389065 Page: 1 Date Filed: 02/22/2011
No. 10-30380

Montie Montgomery, Louisiana prisoner # 412020, appeals both the

district court’s judgment denying his postjudgment motion to rescind the

judgment granting summary judgment in favor of defendants Sexton, Smith,

Risner, Hanson, Lewis, Flowers, and McCoy and dismissing his 42 U.S.C. § 1983

complaint with prejudice and the underlying judgment of dismissal.

Montgomery argues that postjudgment relief was warranted under Federal Rule

of Civil Procedure Rule 60(b) because his attorney failed to withdraw from his

case after he fired her and then sabotaged his case by failing to file adequate

pleadings, including an adequate opposition to the defendants’ motion for

summary judgment. He contends that if his attorney had withdrawn, he would

have received notice of the defendants’ motions and would have had the

opportunity to properly respond to them.

Whether Montgomery’s postjudgment motion is construed as arising under

Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure, the result is the

same: Montgomery has failed to demonstrate that the district court abused its

discretion in denying his postjudgment motion. See Johnson v. Diversicare Afton

Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010); Seven Elves, Inc. v. Eskenazi, 635

F.2d 396, 402 (5th Cir. 1981). The record does not support Montgomery’s

assertion that he fired his attorney. Despite his assertion, Montgomery did not

obtain new counsel or move to proceed pro se. Because there is no evidence that

he, in fact, fired his attorney, Montgomery has failed to demonstrate that the

district court based its denial of his postjudgment motion on either an erroneous

view of the law or a clearly erroneous assessment of the evidence. See Ross v.

Marshall, 426 F.3d 745, 763 (5th Cir. 2005).

Montgomery also has failed to demonstrate that the district court erred in

granting summary judgment. This court reviews the grant of a motion for

summary judgment de novo. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576

F.3d 221, 226 (5th Cir. 2009). Summary judgment is proper if the record

discloses “that there is no genuine dispute as to any material fact and the

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No. 10-30380

movant is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(a)

(2010).

Although Montgomery’s opposition to the motion for summary judgment

was inadequate to defeat summary judgment, the mistakes and omissions of

Montgomery’s counsel are chargeable to him no matter how unfair this may

seem. See Pryor v. U.S. Postal Serv., 769 F.2d 281, 288 (5th Cir. 1985). Further,

Montgomery has failed to point to any evidence showing the existence of a

genuine dispute as to any material fact. Thus, Montgomery has failed to

demonstrate that the district court erred in granting the defendants’ motion for

summary judgment.

The judgment of the district court is AFFIRMED.

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Case: 10-30380 Document: 00511389065 Page: 3 Date Filed: 02/22/2011