eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2021-10

Berlanga v. Easterling ( 2021 )


Menu:
 
  • Case: 19-20801      Document: 00516040239           Page: 1     Date Filed: 10/04/2021
United States Court of Appeals
for the Fifth Circuit                             United States Court of Appeals
Fifth Circuit
FILED
October 4, 2021
No. 19-20801                        Lyle W. Cayce
Summary Calendar                           Clerk
Juan Modesto Berlanga,
Plaintiff—Appellant,
versus
Captain Jason S. Easterling; Lieutenant Marshall,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-1580
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Juan Modesto Berlanga, formerly Texas prisoner # 722788, was an
inmate at the Wynne Unit when he filed a pro se civil rights complaint. The
district court dismissed the civil action for failure to state claim, and it denied
Berlanga’s motion for reconsideration. See Fed. R. Civ. P. 59(e). The
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20801      Document: 00516040239            Page: 2    Date Filed: 10/04/2021
No. 19-20801
instant appeal, which Berlanga filed from a detention facility, is taken from
an order that (1) denied motions based on newly discovered evidence that
were treated as motions for relief from the judgment, and (2) denied a request
for an extension of time to file a notice of appeal. See Fed. R. Civ. P. 60(b);
Fed. R. App. P. 4(a)(5). The Rule 60(b) motions did not bring up the
underlying judgment for review. See Bailey v. Cain,
    609 F.3d 763
    , 767 (5th
Cir. 2010).
Berlanga’s pro se briefs include recitations of the allegations made in
his complaint regarding the sexual assault and harassment he experienced at
the Wynne Unit. Additionally, Berlanga contends that, at his current
detention facility, he met a former inmate who is familiar with what happened
to him at the Wynne Unit, and he asserts that the former inmate has agreed
to testify in his behalf. Because Berlanga’s pro se briefs are entitled to liberal
construction, see Morrow v. FBI,
    2 F.3d 642
    , 643 n.2 (5th Cir. 1993), we regard
the above contentions, which essentially restate the bases for Berlanga’s Rule
60(b) motions based on newly discovered evidence, as challenging the district
court’s denial of these motions.
Pursuant to Federal Rule of Civil Procedure 60(b)(2), a litigant may
obtain 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 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). Berlanga has not shown that the district court
abused its discretion in denying his Rule 60(b) motions. See Wilson v. Johns-
Manville Sales Corp.,
    873 F.2d 869
    , 871 (5th Cir. 1989).
2
Case: 19-20801      Document: 00516040239           Page: 3     Date Filed: 10/04/2021
No. 19-20801
Although pro se briefs are liberally construed, even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins,
    985 F.2d 222
    , 225 (5th Cir. 1993). Berlanga’s briefs contains no argument that can be
liberally construed as a challenge to the district court’s denial of his motion
for an extension of time to file a notice of appeal. Because Berlanga has failed
to brief any such challenge, the issue is deemed abandoned. See Yohey,
    985 F.2d at 225
    ; Brinkmann v. Dallas Cnty. Deputy Sheriff Abner,
    813 F.2d 744
    ,
748 (5th Cir. 1987).
Berlanga’s appeal is frivolous and entirely without merit, and it is
therefore DISMISSED. See 5th Cir. R. 42.2. The district court’s
dismissal of Berlanga’s civil action for failure to state claim counts as a strike
under
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons,
    103 F.3d 383
    , 387 (5th
Cir. 1996), abrogated in part on other grounds by Coleman v. Tollefson,
    575 U.S. 532
    , 537 (2015). Berlanga is WARNED that if he accumulates three strikes
under § 1915(g), he will not be able to proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
3