Case: 09-40981     Document: 00511085145          Page: 1    Date Filed: 04/20/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 20, 2010

                                     No. 09-40981                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



KEVIN MARK CORREIA, M.D.,

                                                   Plaintiff - Appellant
v.

HARLEY G LAPPIN, Director; FEDERAL BUREAU OF PRISONS;
FEDERAL CORRECTIONAL COMPLEX, BEAUMONT, TEXAS; CHIEF
PSYCHOLOGIST JAMES LEE HOOVER,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:08-CV-644


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Kevin Mark Correia, a physician working at a federal correctional facility,
filed suit against various official defendants claiming sex discrimination and
retaliation under Title VII. His suit was dismissed for failure to name the
correct defendant, namely, the Attorney General. He later filed for relief from
judgment, which was denied. We AFFIRM.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-40981

      Dr. Correia is a male psychologist at the Federal Correctional Complex in
Beaumont, Texas. Dr. Correia had an altered work schedule. His hours were
different on Wednesdays so that he could attend to the medical needs of his
child. In 2007, Dr. James Hoover was named the Chief Psychologist at the
facility. Dr. Hoover requested that Dr. Correia resume a regular work schedule.
In response, Dr. Correia began requesting comp time, sick leave, or vacation
time to care for his child. Dr. Correia’s repeated requests to use such time were
denied despite the fact that he had accumulated more than 900 hours of unused
comp time. He was eventually charged with sick leave abuse and three days of
being absent without leave.
      On November 5, 2008, Dr. Correia filed suit against Harley Lappin; the
Federal Bureau of Prisons; the Federal Correctional Complex; and James Lee
Hoover, M.D., alleging sex discrimination, parental status discrimination, and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16,
et seq. Correia claimed there were at least four female employees who were
allowed flexible work schedules in order to attend to their family needs.
      On April 23, 2009, the defendants filed a motion to dismiss alleging a lack
of subject matter jurisdiction. Dr. Correia failed to respond to the motion. The
district court granted the motion on July 9, 2009. The court held that Dr.
Correia had not brought suit against the proper defendant, who was the
Attorney General of the United States, and he was not entitled to relief against
the defendants in their individual capacities because “individuals are not liable
under Title VII in either their individual or official capacities.”
      Dr. Correia subsequently filed a motion for relief from the judgment and
for leave to amend his complaint. Dr. Correia’s counsel offered a number of
reasons for the failure to respond. The primary reason was that his office
suffered damage from Hurricane Ike and had experienced computer and server
problems since the hurricane. The district court denied any relief from the

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                                 No. 09-40981

judgment on August 26, 2009. The district court did not consider Dr. Correia’s
motion for leave to amend as it was moot. Dr. Correia appealed.
      The Defendants claim that Dr. Correia failed to appeal the dismissal of his
complaint but only appealed the denial of his Rule 60(b) Motion. We disagree.
Dr. Correia’s post-dismissal motion sought, in the alternative, relief from
judgment, a new trial, or an alteration of judgment, and also leave to amend. It
was filed eleven days after the dismissal. At the time of the motion, a party had
ten days to file a motion for new trial or to alter the judgment. Fed. R. Civ. P.
59(b) & (e) (2007). Intervening weekends were not counted, so the motion was
timely to preserve the Rule 59 issues, and not just to raise the Rule 60 relief
from judgment.
      Dr. Correia listed in his notice of appeal both the June dismissal and the
August denial of his motion. The timely filing in July of the Rule 59(b) and (e)
motion tolled the time to appeal from the dismissal. Fed. R. App. Proc. 4(a)(4).
Nonetheless, there clearly was no error in dismissing for failure to join the
correct defendant, a motion to which no response had even been filed at the time
that the district court ruled. There is no dispute that the Attorney General was
the necessary defendant.
      The only issue we address, then, is whether it was proper to deny relief
from that judgment. We review a district court’s denial of a motion for relief
from judgment for abuse of discretion. Silvercreek Mgmt., Inc. v. Banc of Am.
Sec., LLC, 

, 472 (5th Cir. 2008).
      The district court denied the Rule 60(b)(1) motion primarily because
counsel’s reason for the delay was not persuasive. “Sufficient time elapsed
following the hurricane for Plaintiff’s counsel to put appropriate measures in
place to ensure that deadlines were not missed.”
      Counsel claims his internal docketing system did not reflect any deadline
or note concerning this suit. He alleged server and computer problems after

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                                 No. 09-40981

Hurricane Ike. Counsel maintains that this is the reason there was no response
to the Motion to Dismiss. No one denied that counsel’s office suffered damage
due to Hurricane Ike.     Hurricane Ike, though, made landfall in Texas on
September 13, 2008, more than seven months before the motion to dismiss was
filed and more than two months before Dr. Correia filed his original complaint.
Counsel does not deny that he would have received electronic notice of the
Motion to Dismiss. He claims it must have “slipped through the cracks.” Also,
counsel listed several cases in which he did file responses and prepare for trial
during the time the Motion to Dismiss was filed and the response due.
      Reviewing the decision to deny relief, we see minimal danger of prejudice
and little impact on judicial proceedings. Counsel may even have acted in good
faith. The fact remains that Dr. Correia did not respond to the Motion to
Dismiss. The district court found that the reasons for this failure were not
persuasive and outweighed other factors. Granting of relief may “have been
permissible, or even warranted, [but] denial must have been so unwarranted as
to constitute an abuse of discretion” before we will reverse.      Huff v. Int’l
Longshoremen’s Ass’n, Local No. 24, 

, 1091 (5th Cir. 1986) (quoting
Seven Elves, Inc. v. Eskenazi, 

, 402 (5th Cir. Unit A Jan. 1981)).
      We conclude that the district court did not abuse its discretion.
      AFFIRMED.




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