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

Appeals from the United States District Court

for the Western District of Louisiana

USDC 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 United States for medical negligence and the

alleged failure to obtain informed consent arising from his father’s 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 17, 2020

Lyle W. Cayce

Clerk

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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 judgment 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 Cir. 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. FED. R. CIV. P. 59(e). The 

district court did not err in denying 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 

motions under Rule 60(b)(3) to grant relief from 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 party from fully and fairly presenting his case.” Hesling v. CSX 

Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005). “The moving party has 

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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. Opposing counsel’s statements appear to be in 

response to Garrett’s accusation that the Government was falsifying 

evidence 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 exhibits 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 

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plausible, and (c) does not identify the evidence that he would have 

submitted absent the supposed misconduct.1

Garrett also maintains that the district court erred in denying his 

motions 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.” FED. R. CIV. 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 

motions 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 FED. R. CIV. 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 

motions 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).” FED. R. CIV. 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.

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evidence 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 

motions under Rule 60(b)(2).

Finally, Garrett has provided no basis for relief under 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.

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