M. Taylor, et al v. Chief Thomas Streicher, et al

Filing

OPINION filed : AFFIRMED the judgment of the district court; denying as moot motion to strike brief [4502610-2] filed by Mr. Geoffrey Parker Damon, decision not for publication pursuant to local rule 206. Gilbert S. Merritt, Circuit Judge; Danny J. Boggs, Circuit Judge and Eric L. Clay, AUTHORING Circuit Judge.

Case: 11-3756

Document: 006111307252

Filed: 05/16/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0509n.06
No. 11-3756
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED

May 16, 2012
LEONARD GREEN, Clerk

MEL AARON TAYLOR,
JAMES STEVEN BONNELL,
Plaintiffs-Appellants,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO

v.
CHIEF THOMAS STREICHER, et al.,
Defendants-Appellees.
/

BEFORE:

MERRITT, BOGGS, and CLAY, Circuit Judges.

CLAY, Circuit Judge. Plaintiffs Mel Aaron Taylor and James Steven Bonnell appeal from
an order of the district court denying their motion from relief from judgment, filed pursuant to
Federal Rule of Civil Procedure 60(b). Plaintiffs seek relief from the district court’s order granting
summary judgment to Defendants Chief Thomas Streicher, Lieutenant Colonel James Smith,
Lieutenant Colonel Richard Biehl, Captain David Ratliff, Specialist William O’Brien, Sergeant Lisa
Thomas, and the City of Cincinnati on Plaintiffs’ federal claims under 42 U.S.C. §§ 1983 and 1985
and Ohio common law claims for malicious prosecution, abuse of process, defamation, false
imprisonment, and intentional infliction of emotional distress. In a prior opinion, we affirmed the

Case: 11-3756

Document: 006111307252

Filed: 05/16/2012

Page: 2

district court’s order granting summary judgment (No. 10-3894). We now affirm the district court’s
order denying Plaintiffs’ Rule 60(b) motion.
In this appeal, Plaintiffs contend that they are entitled to relief from the district court’s
summary judgment order under Rule 60(b)(2), (3), and (6) because the transcript of Defendant
O’Brien’s grand jury testimony is 1) newly discovered evidence, which demonstrates that O’Brien’s
deposition testimony was false and misleading; and 2) O’Brien’s false testimony constituted fraud
on the court with respect to Plaintiff’s malicious-prosecution claim. Plaintiffs assert that O’Brien’s
grand jury testimony indicated that he had evidence that Plaintiff Taylor wrongfully profited from
a government grant, whereas O’Brien’s deposition testimony indicated that O’Brien did not have
actual evidence that Taylor profited from the grant.
We review a denial of a Rule 60(b) motion for abuse of discretion. Good v. Ohio Edison Co.,
149 F.3d 413, 423 (6th Cir. 1998). Rule 60(b)(2) permits relief from a prior judgment where there
is “newly discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b).” The new evidence must be “material and controlling
and clearly would have produced a different result if presented before the original judgment.” Good,
149 F.3d at 423 (internal citation and quotation marks omitted). The district court denied Plaintiffs’
motion on the basis that O’Brien’s grand jury testimony was not newly discovered evidence, because
it was recorded in 2001 and Plaintiffs’ civil action was filed in 2007. We agree. See id.
(emphasizing that, under Rule 60(b)(2), a movant must exercise “due diligence” in obtaining
information that was available).
Under Rule 60(b)(3), relief from judgment may be granted where there was “fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”
The district court found that, even if O’Brien’s grand jury testimony were false, the decision to

Case: 11-3756

Document: 006111307252

Filed: 05/16/2012

Page: 3

prosecute was not made by O’Brien, but by the Hamilton County prosecutor. Therefore, O’Brien’s
testimony was immaterial to the court’s decision with respect to Plaintiffs’ malicious-prosecution
claim. We affirmed this position in our prior opinion. There is no basis for finding a fraud on the
court, and the district court did not abuse its discretion in denying Plaintiff’s motion under Rule
60(b)(3).
Finally, Rule 60(b)(6) permits courts to grant relief from judgment for “any other reason that
justifies relief.” “We have held that Rule 60(b)(6) should apply ‘only in exceptional or extraordinary
circumstances which are not addressed by the first five numbered clauses of the Rule.’” Olle v.
Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (citing Hopper v. Euclid Manor Nursing
Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989)). Plaintiffs argue only that O’Brien’s allegedly false
testimony requires relief in the interest of justice; they provide no compelling explanation or
argument, other than reasserting their fraud-on-the-court argument. Plaintiffs fall far from meeting
their burden of demonstrating an entitlement to relief under any Rule 60(b) ground, let alone Rule
60(b)(6), which applies only “where principles of equity mandate relief.” Olle, 910 F.3d at 365.
Because we dismiss Plaintiffs’ appeal on the merits, Plaintiffs’ motion to strike Defendants’
appellate brief is denied as moot. For the reasons stated above, the judgment of the district court
denying Plaintiffs’ motion for relief from judgment is AFFIRMED.

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