### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 30994 Summary Calendar

KENYON J. GARRETT,
Plaintiff

- Appellant

v. UNITED STATES OF AMERICA,
Defendant

- Appellee

Appeal s from the United States District Court for the Western District of Louisiana U S D C No. 5:17

- CV

- 0784

Before WIENER, HAYNES, and COSTA, Circuit Judges

. PER CURIAM: * Plaintiff

- Appellant Kenyon Garrett appeals the denial of his motions to amend or alter the judgment dismissing his claims

. For the following reasons, we AFFIRM the district court

. Garrett sued the Unite d States for medical negligence and the alleged failure to obtain informed consent arising from his father’s

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 17, 2020 Lyle W. Cayce Clerk Case: 19-30994 Document: 00515386197 Page: 1 Date Filed: 04/17/2020No. 19

- 30994

2 treatment at the Overton Brooks VA Medical Center

. The district court dismissed Garrett’s claims on summary judgment , which we affirmed. Garrett v. United States , 776 F. App ’ x 882 (5th Cir. 2019)

. After receiving the judgment from this court, Garrett filed several motions under Federal Rules of Civil Procedure 59 and 60 seeking to amend, alter, or obtain relief from the district court’s jud gment dismissing his case , all of which the district court denied

. This court reviews the denial of motions under Rules 59(e) and 60 for abuse of discretion. Rosenblatt v. United Way of Greater Hous., 607 F.3d 413, 419 (5th Cir. 2010 ); Frazar v. Ladd, 457 F.3d 432, 435 (5th Cir. 2006). A district court abuses its discretion if it “bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Kennedy v. Texas Utilities , 179 F.3d 258, 265 (5th Ci r. 1999). Garrett contends that the district court erred in denying his Rule 59(e) motion. That rule allows a party to move to alter or amend a final judgment within twenty

- eight days of its entry. F ED

. R. C IV

. P. 59(e). The district court did not err in d enying Garrett’s Rule 59(e) motion because it was filed on November 19, 2019, nine months after the judgment was issued on February 19, 2019. Garrett also contends that the district court erred in denying his motion s under Rule 60(b)(3) to grant relief fro m the judgment dismissing his case because of misconduct by the opposing attorney. “ A party making a Rule 60(b)(3) motion must establish (1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving part y from fully and fairly presenting his case. ” Hesling v. CSX Transp., Inc. , 396 F.3d 632, 641 (5th Cir. 2005) . “ The moving party has Case: 19-30994 Document: 00515386197 Page: 2 Date Filed: 04/17/2020No. 19

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3 the burden of proving the misconduct by clear and convincing evidence. ” Id. Garrett claims that the Government’s attorney prevented him from submitting evidence to the court by improperly threatening Garrett with sanctions and arrest

. O pposing counsel’s statements appear to be in
response to Garrett’s accusation that the Government was falsifying evidenc e and misplacing discovery that Garrett had provided

. The specific statements that Garrett objects to are: (1) “If you have proof, bring it forward in the same manner that an attorney would be required to do so. I do not want to have to seek sanction or penalty but I will do so if you do not cease with the disparaging remarks and baseless allegations.” (2) “I can, of course, get the court involved if you keep trying to make this mater into something criminal when it clearly is not.” (3) “If I cannot locate the ex hibits despite an exhaustive search, there is a problem.” The district court did not abuse its discretion in finding no misconduct in those statements. Furthermore, Garrett fails to meet his Rule 60(b)(3) burden because he (a) does not provide his own statements that prompted the supposed misconduct, (b) fails to submit any evidence that his implied allegations of falsified evidence were true or even Case: 19-30994 Document: 00515386197 Page: 3 Date Filed: 04/17/2020No. 19

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4 plausible, and (c) does not identify the evidence that he would have submitted absent the supposed misco nduct. 1 Garrett also maintains that the district court erred in denying his motion s under Rule 60(b)(1) to correct its ruling declining to accept Garrett’s own testimony as an expert witness with respect to the malpractice of “ non - medical employees. ” Rule 60(b)(1) allows for relief from a judgment due to “ mistake, inadvertence, surprise, or excusable neglect .” F ED

. R. C IV

. P. 60(b)(1). This court has already held that the district court did not abuse its discretion in refusing to allow Garrett to testify as his own expert

. Garrett , 776 F. App’x at 883. To the extent that Garrett raises a new issue with respect to “non

- medical employees , ” he fails to identify a mistake or error. The district court denied Garrett’s motion s for relief on this issue because Garrett failed to present any of his own purported expert opinions in the form of competent summary judgment evidence. See F ED

. R. C IV

. P. 56(c )

. The record confirms that the district court did not abuse its discretion in that assessment. Garrett further insists that the district court erred in denying his motion s under Rule 60(b)(2) to submit new evidence. Rule 60(b)(2) allows relief from a judgment based on “ newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) .” F ED

. R. C IV

. P. 60(b)(2). To succeed on a Rule 60(b)(2) motion, the “ movant must demonstrate: (1) that [he] exercised due diligence in obtaining the information; and (2) that the

1 Garrett need not show that the evidence would have altered the outcome of the case but must show that he was “prevented . . . from fully and fairly presenting his case .” Hesling , 396 F.3d at 641. Case: 19-30994 Document: 00515386197 Page: 4 Date Filed: 04/17/2020No. 19

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5 evide nce is material and controlling and clearly would have produced a different result if present before the original judgment. ” Goldstein v. MCI WorldCom , 340 F.3d 238, 257 (5th Cir. 2003 ). Garrett seeks to submit recordings of conversations that he had with the Government’s employees in which they allegedly admit that some treatments listed in Garrett’s father’s medical records were not actually delivered. Setting aside the issue of due diligence, Garrett fails to show that the recordings “clearly would have produced a different result.” The district court dismissed Garrett’s claims on summary judgment based in part on the lack of any expert testimony that the alleged medical malpractice caused his father’s injuries. Garrett has not shown that the additional recording would change that conclusion. The district court, therefore, did not abuse its discretion in denying Garrett’s motion s under Rule 60(b)(2). Finally, Garrett has provided no basis for relief und er Rule 60(b)(6) not already addressed under one of the other Rule 60(b) subsections. See Hess v. Cockrell , 281 F.3d 212, 215 (5th Cir. 2002)

. Accordingly, the judgement of the district court is AFFIRMED. Case: 19-30994 Document: 00515386197 Page: 5 Date Filed: 04/17/2020