Alfred v. Allen Correctional Center , 317 F. App'x 420 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2009
No. 08-30126
Summary Calendar Charles R. Fulbruge III
Clerk
PETER ROY ALFRED, JR
Plaintiff-Appellant
v.
ALLEN CORRECTIONAL CENTER; LINDA HAUSAUER; WACKENHUT
SECURITY CO; MARCUS CLEAR; SERGEANT CEASER; MRS KERSHAW; O
KENT ANDREWS; JAMES SIMON; OTIS JOHNSON
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:03-CV-703
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Peter Roy Alfred, Jr., Louisiana prisoner # 315023, appeals the denial of
his request for a “rehearing” after the district court denied his motion to annul
an entry of summary judgment in favor of the defendants in a 42 U.S.C. § 1983civil suit. Alfred had alleged, among other things, that his right against cruel
*
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should not be published and is not precedent except under the limited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.
No. 08-30126
and unusual punishment had been violated because officials failed to provide
adequate medical care for his severe sleep apnea.
Alfred’s motion for “rehearing” is treated as a Federal Rule of Civil
Procedure 60(b) motion, and the district court’s denial is reviewed for abuse of
discretion. Terrebonne v. K-Sea Transp. Corp., 477 F. 3d 271, 277 (5th Cir. 2007)
(internal citations omitted); see Harcon Barge Co. v. D & G Boat Rentals, Inc.,
784 F.2d 665, 668 (5th Cir. 1986) (en banc). To the extent that Alfred directly
challenges the grant of summary judgment, those arguments are not cognizable
because the denial of a Rule 60(b) motion does not bring up the underlying
judgment for review. Matter of Ta Chi Navigation (Panama) Corp. S.A., 728
F.2d 699, 703 (5th Cir. 1984).
In his motion for “rehearing,” Alfred advanced no plausible explanations
to demonstrate that the district court had abused its discretion in denying his
motion to annul the grant of summary judgment based on the grounds that the
request for relief did not fall within any of the parameters of Rule 60(b) and also
that the annulment motion had been untimely filed. Similarly, in his appellate
brief, Alfred does not make any explicit or implicit arguments pertinent to the
Rule 60(b) factors.
A district court does not abuse its discretion by denying a Rule 60(b)
motion wherein the movant merely rehashes his prior arguments without
making a showing that his request for reconsideration is based on one of the
statutory grounds. Matter of Colley, 814 F.2d 1008, 1010-11 (5th Cir. 1987).
Alfred’s motion for “rehearing” is simply a repeat of the same arguments he has
previously made against the grant of summary judgment, and his assertion that
he was unaware of the time constraints is disingenuous at best. Accordingly, the
district court was well within its discretion to deny Alfred’s motion for
“rehearing.” Id.AFFIRMED
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