United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM JUDGE.
REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge.
state prisoners who were convicted and sentenced before 1996,
brought this civil rights action under 42 U.S.C. § 1983
alleging that the retroactive application of Ohio's
parole laws and guidelines violated their rights under the
Eighth Amendment, the Due Process Clause, the Ex Post Facto
Clause, and O.R.C. § 5120.021. On March 5, 2014, this
Court, acting pursuant to 28 U.S.C. § 1915A(b)(1),
dismissed the Complaint for failure to state a claim
upon which relief can be granted. Order, ECF No. 10;
Judgment, ECF No. 11. The United States Court of
Appeals for the Sixth Circuit affirmed that judgment,
Richard, et al. v. Mohr, No. 14-3420 (6th
Cir. Jan. 23, 2015), and the United States Supreme Court
denied certiorari. Richard v. Mohr, No. 15-6914
(Sup. Ct. Jan. 20, 2016). This matter is now before the Court
on the motion for relief from judgment, filed by plaintiffs
Richard and Calo. Plaintiffs['] Motion for
Relief from Judgment, or Order, for March 5, 2014, pursuant
to Federal Civil Rule 60(B)($), (6) and (d)(3), for After
Discovered Fraud upon the Court and Fraud by the
Court Evidentiary Hearing Requested Hereon, ECF No.
22 (hereinafter “Motion for Relief from
Motion for Relief from Judgment, Plaintiffs assert
that the District Judge and the undersigned engaged in
“willful blindness” and “deliberate
ignorance” of controlling state court authority,
id. at PageID# 149, and that the District Judge
should have recused himself because one of the named
Defendants, Andre Imbrogno, was an extern in the District
Judge's chambers while a law student some fifteen years
prior to the institution of this action. Id. Neither
assertion warrants the relief sought in the Motion for
Relief from Judgment.
second proffered basis for relief was the subject of
Plaintiffs' separate motion asking the District Judge to
recuse himself. Motion to Recuse Judge James L. Graham,
pursuant to 28 USC 455(a)(b)(1)(2)-(5)(iv), ECF
No. 23. The District Judge denied that motion, reasoning as
The court finds that its brief period of contact with Mr.
Imbrogno fifteen years prior to the filing of this suit does
not constitute grounds for recusal under the rules [invoked
by Plaintiffs]. The records of the chambers of the
undersigned judge confirm that Mr. Imbrogno served an
externship for a three-to-four month period in 1998. However,
Mr. Imbrogno had no further communication or contact with the
undersigned judge or chambers staff after the completion of
the externship. In no sense did the type of friendship or
close relationship arise during this brief externship period
that would permit the undersigned judge's partiality to
be reasonably questioned.
Order, ECF No. 24, PageID# 170-71. That same
reasoning applies to the Motion for Relief from
Judgment and, to the extent that that motion raises the
same ground for relief, that motion is without merit.
Motion for Relief from Judgment invokes Rule
60(b)(4) and (b)(6) of the Federal Rules of Civil Procedure.
As an initial matter, motions under Rule 60(b)(4) and (b)(6)
must be filed “within a reasonable time.” Rule
60(c)(1). Plaintiffs' Motion for Relief from
Judgment was filed more than five (5) years after this
Court entered judgment, and more than three (3) years after
the United States Supreme Court denied certiorari.
Plaintiffs' Motion for Relief from Judgment does
not rely on facts or authority not available to Plaintiffs
at the time that judgment was entered, and Plaintiffs offer
no persuasive justification for their delay in filing the
Motion for Relief from Judgment. For this reason
alone, the motion is without merit.
considering the substance of the Motion for Relief from
Judgment, the Court concludes that the motion is without
merit. Rule 60(b)(4) permits a District Court to grant relief
from a judgment if “the judgment is void.” The
United States Supreme Court has defined a “void”
judgment within the meaning of Rule 60(b)(4) as a
“nullity, ” i.e., a judgment “so
affected by a fundamental infirmity that the infirmity may be
raised even after the judgment becomes final.”
United Student Aid Funds, Inc. v. Espinosa, 559 U.S.
260, 270 (2010). Void judgments are exceedingly rare,
however. “Rule 60(b)(4) applies only in the rare
instance where a judgment is premised either on a certain
type of jurisdictional error or on a violation of due process
that deprives a party of notice or the opportunity to be
heard.” Id. at 271. “‘A judgment
is not void. . . simply because it is or may have been
erroneous.'” Id. at 270 (quoting Hoult
v. Hoult, 57 F.3d 1, 6 (1stCir. 1995)).
judgment entered in this case was not void because
“[f]ederal courts have authority to entertain §
1983 actions and to dismiss them” for failure to state
a claim upon which relief can be granted. Manohar v.
Massillon Community Hospital, 208 F.3d 214 (Table), 2000
WL 302776 (6th Cir. 2000). This Court was, without
question, vested with the jurisdiction to entertain the
claims presented by Plaintiffs in this action. Moreover, and
notwithstanding Plaintiffs' disagreement with the
judgment entered by this Court, Plaintiffs were granted
notice and the opportunity to be heard and were therefore not
denied due process in connection with the resolution of the
action. The judgment entered by this Court was therefore not
void within the meaning of Rule 60(b)(4).
also invoke Rule 60(b)(6), which authorizes relief for
“any other reason that justifies relief, ” and
Rule 60(d)(3), which authorizes a federal court to “set
aside a judgment for fraud on the court.” Relief under
Rule 60(b)(6) is available “only in exceptional or
extraordinary circumstances which are not addressed by the
first five numbered clauses of the Rule.” Stokes v.
Williams, 475 F.3d 732, 735 (6th Cir. 2007) (internal
quotation marks omitted). The “fraud on the
court” contemplated by Rule 60(d)(3) has been defined
as “‘egregious conduct involving a corruption of
the judicial process itself.'” Gen. Medicine,
P.C. v. Horizon/CMS Health Care Corp., 475 Fed.Appx. 65,
71 (6th Cir. 2012)(quoting 11 Charles Alan Wright
et al., Federal Practice & Procedure
§ 2870). Movants seeking to establish fraud sufficient
to warrant relief from judgment must present clear and
convincing evidence of
(1)[conduct] on the part of an officer of the court; that (2)
is directed to the judicial machinery itself; (3) is
intentionally false, willfully blind to the truth, or is in
reckless disregard of the truth; (4)is a positive averment or
a concealment when one is under a duty to disclose; and
(5)deceives the court.
Johnson v. Bell, 605 F.3d 333, 339 (6th
Cir. 2010); Carter v. Anderson, 585 F.3d 1007,
1011-12 (6th Cir. 2009).
support of their motion, Plaintiffs complain that the
assigned judicial officers engaged in “‘willful
blindness' and ‘deliberate ignorance' of
controlling case law....” Motion for Relief
fromJudgment, PageID# 149. However, the
cases cited by Plaintiffs simply do not support either the
claims originally asserted in this action or Plaintiffs'
Motion for Relief from Judgment. See State ex
rel. Blakev. Shoemaker, No. 81 AP-487 (Ohio
App. 10th Dist., Jan. 26, 1982)(finding no
constitutional due process right in parole procedures);
State ex rel. Blake v. Shoemaker, 4 Ohio St.3d 42
(1983) (finding no constitutional due process rights in
connection with laws governing parole in Ohio); Inmates
of Orient Correctional Institute v. Ohio State Adult Parole
Authority, 929 F.2d 233 (6th Cir.
1991)(holding that there is no constitutionally protected
liberty interest in a conditionally granted parole). The fact
that a minority of Ohio Supreme Court Justices may have
expressed disagreement with these holdings, see State ex
rel. McCall v. Gall, 147 Ohio St.3d 1476, 2016-Ohio-8439
(Table) (Dec. 28, 2016), is of course immaterial. Other cases
cited by Plaintiffs in their motion do not address either the
claims originally asserted in this action or the contentions
presented in the Motion for Relief from Judgment.
See Ridenour v. Wilkinson, 2007-Ohio-5965, 2007 WL
3293371 (Ohio App. 10th Dist., ...