United States District Court, N.D. Ohio
ANTHONY L. VIOLA, Plaintiff,
WILLIAM J. BAIR, et al., Defendants.
OPINION & ORDER [RESOLVING DOC. NOS. 32 AND
S. GWIN, UNITED STATES DISTRICT JUDGE:
filed a Motion for Reconsideration (Doc. No. 32) and a Motion
for Forensic Audit (Doc. No. 36) asking this Court to reopen
his civil rights case challenging his federal and state
convictions on the grounds of newly discovered evidence. He
also asks the Court to conduct a forensic audit of funds
collected from him in restitution and forfeiture in his
federal criminal case. Defendants oppose the Motions (Doc.
Nos. 33, 34, 37).
Civil Procedure Rule 59(e) allows a party to file a Motion to
Alter or Amend its Judgment when one of the following
circumstances arises: (1) there is an intervening change in
the controlling law; (2) evidence not previously available
became available; or (3) it is necessary to correct a clear
error of law or prevent manifest injustice. Rule 59(e)
Motions are “entrusted to the court's sound
discretion.” They are not intended as an opportunity to
relitigate previously considered issues, or to attempt to
persuade the Court to reverse the judgment by offering the
same arguments previously presented.
contends he is entitled to relief under Rule 59(e) based on
newly discovered evidence. In his Complaint, he alleged the
Justice Department prosecuted him for defrauding MortgageIT,
Inc., now part of Deutsche Bank, while investigating Deutsche
Bank for its own alleged fraudulent activity. He reasoned
that Deutsche Bank was not a victim of his criminal activity,
and this Court should relieve him of the restitution portion
of his sentence. The Court dismissed his Complaint stating
Plaintiff could not challenge his conviction or obtain relief
from his sentence in a civil rights action. The Court also
determined he sued government officials who were not subject
to suit in their official capacities, and he stated no facts
to suggest a basis for liability in their individual
capacities. Plaintiff's offered newly discovered evidence
pertains to properties listed in his indictments, which were
later foreclosed upon by Deutsche Bank. Plaintiff claims this
proves Deutsche Bank is not entitled to restitution.
qualify as “newly discovered evidence, ” the
evidence must have been previously
unavailable.” Plaintiff therefore must demonstrate he
exercised due diligence in obtaining the information and that
the evidence is “material and controlling and clearly
would have produced a different result if presented before
the original judgment.” These foreclosures were filed in
2006 and 2007, well before Plaintiff filed this civil rights
action in 2017. Moreover, even if they had been presented to
the Court with the Complaint, they would not alter this
Court's conclusion that Plaintiff cannot challenge his
conviction in a civil rights action, or bring claims against
the named Defendants in their official or individual
capacities. Plaintiff is not entitled to relief under Rule
addition, Plaintiff asks this Court to conduct a forensic
audit into all of the funds collected by the government
through restitution and forfeiture. If Plaintiff believes a
forensic audit would provide him grounds for relief from his
sentence, he should seek that relief in his criminal case.
This Court cannot invalidate his sentence through a civil
Plaintiff's Motion for Reconsideration (Doc. No. 32) and
Motion for Forensic Audit (Doc. No. 36) are denied. The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an
appeal from this decision could not be taken in good faith.
 GenCorp, Inc. v. Am. Int'l
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
 Constr. Helicopters, Inc. v.
Heli-Dyne Sys., Inc., Nos. 88-1166, 88-1192, 1989 WL
54111, at *4 (6th Cir. May 23, 1989); Keweenaw Bay Indian
Community v. United States, 940 F.Supp. 1139, 1140 (W.D.
Mich.1996) (citing Huff v. Metropolitan Life Ins.
Co., 675 F.2d 119, 122 (6th Cir.1982)).
Kenneth Henes Special Projects
Procurement v. Cont'l Biomass Indus., Inc., 86
F.Supp.2d 721, 726 (E.D. Mich. 2000) (emphasis and citation
omitted); see also Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)
(noting that a Rule 59(e) motion “is not an opportunity
to re-argue a case” nor an avenue to raise arguments
that “could have, but [were] not” raised before);
Beltowski v. Bradshaw, No. 1:08 CV 2651, 2009 WL
5205368, at *4 (N.D. Ohio Dec. 23, 2009) ...