United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM, UNITED STATES DISTRICT JUDGE
brought the instant action under 42 U.S.C. §1983
alleging that the retroactive application of Ohio's
parole laws and guidelines violated their rights under the
Eight Amendment, the Due Process Clause, the Ex Post Facto
Clause, and Ohio Rev. Code §5120.021. This action was
dismissed on March 5, 2014, for failure to state a claim. The
Sixth Circuit Court of Appeals affirmed the dismissal in a
decision filed on January 23, 2015. The United States Supreme
Court denied plaintiffs' petition for a writ of
certiorari on January 20, 2016. On May 10, 2019, plaintiffs
Donald Richard and Dennis Calo filed a motion for relief from
judgment pursuant to Fed.R.Civ.P. 60(b)(4) and (6) and
60(d)(3). This matter is before the court on the July 10,
2019, report and recommendation of the magistrate judge
recommending that the motion be denied. Plaintiffs filed an
objection to the report and recommendation on August 19,
Standard of Review
party objects within the allotted time to a report and
recommendation, the court “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. §636(b)(1); see also
Fed.R.Civ.P. 72(b). Upon review, the Court “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
objection addresses the magistrate judge's discussion of
their motion for relief from judgment under Rule 60(b)(4) and
(6) and 60(d)(3). The magistrate judge first noted that
motions under Rule 60(b)(4) and (b)(6) must be filed
“within a reasonable time.” Fed.R.Civ.P.
60(c)(1). She observed that the plaintiffs' motion was
filed more than five years after the entry of judgment on
March 5, 2014, and that plaintiffs offered no persuasive
justification for their delay in filing the motion. The court
agrees with that finding.
magistrate judge also addressed the merits of plaintiffs'
motion. Under Rule 60(b)(4), the court can grant relief from
judgment if “the judgment is void.” Rule
60(b)(4). As the magistrate judge indicated, this provision
applies only in the rare instance where the judgment is
premised on either a jurisdictional error or on a violation
of due process that deprives a party of notice or the
opportunity to be heard, not simply because the judgment is
or may be erroneous. United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 270 (2010). The magistrate judge
correctly concluded that the judgment in this case is not
void because this court had jurisdiction over plaintiff's
claims under §1983, and because plaintiffs were not
denied due process in connection with the resolution of this
claim in their objection that they were denied due process
because, at the time of the original report and
recommendation issued on January 23, 2014, their access to
research computers was curtailed, and that, at some
unspecified point, those computers were removed. This
allegation is insufficient to show a denial of due process.
The record reveals that after the issuance of the January 23,
2014, report and recommendation, plaintiffs filed a motion on
February 10, 2014, for an extension of time to file
objections, stating that there were only two word processors
at the institution. See Doc. 7. That motion was
granted, and the deadline for filing objections was extended
to February 26, 2014. See Doc. 8. Plaintiffs made no
additional request for an extension. On February 24, 2014,
two days before the deadline, plaintiffs filed objections in
a document consisting of twenty-one pages of argument and
citations to cases and statutes. See Doc. 9.
Judgment dismissing this action was entered on March 14,
2014. On March 21, 2014, plaintiffs filed a motion to alter
or amend judgment on March 21, 2014. The motion was
twenty-eight pages long and included argument and case
citations. No. claim was made in this document that
plaintiffs were unable to adequately advance their arguments.
Plaintiffs also pursued an appeal to the Sixth Circuit Court
of Appeals, which affirmed the judgment on January 23, 2015,
and filed a petition for writ of certiorari in the United
States Supreme Court. The record does not substantiate
plaintiffs' claims that they were denied due process or a
fair opportunity to be heard in the prior proceedings. The
objection to the magistrate judge's findings in regard to
plaintiffs' motion under Rule 60(b)(4) is not well taken.
magistrate judge also addressed plaintiffs motion under Rule
60(b)(6) and (d)(3). Rule 60(b)(6) authorizes relief for
“any other reason that justifies relief.” Rule
60(b)(6). Relief under that rule is available only in
exceptional or extraordinary circumstances which are not
addressed by the first five subsections of Rule 60(b).
Stokes v. Williams, 475 F.3d 732, 735 (6th Cir.
2007). Rule 60(d)(3) authorizes the court to “set aside
a judgment for fraud on the court.” The fraud on the
court envisioned by this rule is 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). Proof of fraud requires
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).
argued in their motion that the magistrate judge and this
court engaged in willful blindness and deliberate ignorance
of the controlling case law in dismissing their claims. In
her initial screen report and recommendation of January 23,
2014, the magistrate judge analyzed plaintiffs' claims
and the relevant legal authorities and concluded that the
complaint failed to state a claim for relief. That conclusion
was adopted by this court, and the judgment dismissing the
complaint was upheld by the Sixth Circuit Court of Appeals.
In the report and recommendation of July 10, 2019, the
magistrate judge found that the cases cited by plaintiffs in
their motion to amend judgment do not support either their
original claims or their motion for relief from judgment.
Doc. 25, p. 5.
now allege in their objection that the magistrate judge
misled and misrepresented the holdings in cases relevant to
plaintiffs' claims and made false, misleading and
contrived arguments in support of her recommendations.
However, plaintiffs' objection basically reargues the
merits of their claims based on their own interpretation of
the case law. The import of their objection is that the
magistrate judge perpetrated a fraud on the court because she
did not agree with plaintiffs' view of the legal
authorities. The court finds that the fact that the
magistrate judge's interpretation of the legal
authorities differed from plaintiffs' reading of these
authorities does not establish that a fraud on the court was
committed by the magistrate judge in this case. Likewise,
this court did not engage in willful blindness and deliberate
ignorance of the controlling case law in dismissing
plaintiffs' claims. Plaintiffs' objection to the
magistrate judge's conclusions regarding plaintiffs'
motion under Rule 60(b)(6) and (d)(3) is denied.
court agrees with the report and recommendation, and the
report and recommendation (Doc. 25) is hereby adopted.
Plaintiffs' objections (Doc. 32) are denied. The ...