Montie Montgomery v. Gary Sexton , 413 F. App'x 734 ( 2011 )

Case: 10-30380 Document: 00511389065 Page: 1 Date Filed: 02/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2011
No. 10-30380
Summary Calendar Lyle W. Cayce
Clerk
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:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 2 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. § 1983complaint 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 He contends that if his attorney had withdrawn, he would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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Case: 10-30380 Document: 00511389065 Page: 3 Date Filed: 02/22/2011
No. 10-30380
movant is entitled to a judgment as a matter of law.” F ED. R. C IV. 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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