IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20172

Summary Calendar

MICHAEL WAYNE STEWART,

Plaintiff−Appellant,

versus

FRANK A. LEONARD, M.D., Individually and in His Official Capacity,

Defendant−Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-1483

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Michael Stewart, Texas prisoner #906797, appeals the summary-

 

* 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

August 17, 2017

Lyle W. Cayce

Clerk

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No. 16-20172

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judgment dismissal of his 42 U.S.C. § 1983 suit, wherein he raised claims regarding his medical care and conditions of confinement. This court is without 

jurisdiction to consider Stewart’s appeal insofar as he seeks review of the 

underlying judgment. According to the certificate of service, his post-judgment 

motion was placed in the prison mail system at the earliest on February 12, 

2016, which was 29 days after judgment was entered. Any post-judgment 

motion that challenges the underlying judgment, requests relief other than 

correction of a purely clerical error, and is filed more than 28 days after judgment is treated as a motion under Federal Rule of Civil Procedure 60(b). See 

Harcon Barge Co. v. D&G Boat Rentals, Inc., 784 F.2d 665, 668−69 (5th Cir. 

1986) (en banc); Williams v. Thaler, 602 F.3d 291, 303 (5th Cir. 2010). 

Thus, Stewart’s motion was not timely under Federal Rule of Civil Procedure 59(e) and instead must be considered a Rule 60(b) motion. Because the

notice of appeal is timely only as to the Rule 60(b) motion, it “does not bring up 

the underlying judgment for review.” Bailey v. Cain, 609 F.3d 763, 767 (5th 

Cir. 2010).

The denial of Rule 60(b) relief is reviewed for abuse of discretion. Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011). “It is not enough that the 

granting of relief might have been permissible, or even warranted—denial 

must have been so unwarranted as to constitute an abuse of discretion.” Seven 

Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981). A 

Rule 60(b) motion is not an opportunity to rehash prior arguments. See Triple 

Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 269 (5th Cir. 2007) (noting that, as a 

general proposition, a Rule 60(b) motion is not a permissible method for a party 

to “relitigate its case”).

In his Rule 60(b) motion, Stewart offered only conclusional allegations 

and unsubstantiated assertions, none of which made the denial of the

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Rule 60(b) motion “so unwarranted as to constitute an abuse of discretion.” See 

Seven Elves, 635 F.2d at 402. Without more, Stewart’s disagreement with his 

medical treatment was insufficient to constitute deliberate indifference, see 

Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006), especially in light of a 

record showing a continued willingness to take his medical claims seriously, 

see Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001).

Stewart also challenges the district court’s decision, under 28 U.S.C. 

§ 1915A, to dismiss his claims related to his conditions of confinement. As 

noted previously, because Stewart’s postjudgment motion is a Rule 60(b) 

motion, it cannot implicate the underlying judgment for review. See Bailey, 

609 F.3d at 767. Stewart did not otherwise challenge the dismissal of his 

conditions-of-confinement claims in his Rule 60(b) motion, so this court is without jurisdiction to consider his arguments on appeal. 

In light of the foregoing, the appeal is DISMISSED in part for want of 

jurisdiction. To the extent that Stewart challenges the denial of his postjudgment motion, the judgment in that respect is AFFIRMED. Finally, Stewart’s motion for leave to file an out-of-time reply brief is GRANTED.

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