Warwick v. University of the Pacific et al

Filing 244

ORDER by Judge Claudia Wilken DENYING 224 PLAINTIFF'S RULE 60 MOTION FOR RELIEF FROM JUDGMENT. (ndr, COURT STAFF) (Filed on 11/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOANNE WARWICK,

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United States District Court
For the Northern District of California

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No. C 08-3904 CW

Plaintiff,
v.
UNIVERSITY OF THE PACIFIC;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION
(CDCR); PATRICIA MILLER; MATTHEW
CATE; MARVIN SPEED; TED RICH;
MICHAEL BRADY; CLAUDIA BELSHAW;
JILL BROWN; JOHN D. STOKES; GARY
SWARTHOUT; DOES TWO THROUGH
TWENTY-FIVE, inclusive,

ORDER DENYING
PLAINTIFF'S
RULE 60 MOTION FOR
RELIEF FROM
JUDGMENT (Docket
No. 224)

Defendants.
________________________________/
Plaintiff Joanne Warwick moves for relief from judgment,
pursuant to Federal Rules of Civil Procedure 60(b)(2), (3) and

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(d)(3).

Docket No. 224.

Defendants oppose the motion.

Having

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considered all of the parties' submissions, the Court DENIES the
motion.
BACKGROUND
This lawsuit arises from Warwick’s termination as a contract

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attorney for the California Parole Advocacy Program (CalPAP).

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CalPAP trains, appoints and assigns panel-contracted attorneys to

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parolees facing parole revocation proceedings.

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by Defendant University of Pacific (UOP) through a contract with

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the State of California.

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panel of attorneys because her gate clearance at San Quentin

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prison was revoked.

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CalPAP is operated

CalPAP removed Warwick from the CalPAP

In response to her termination, Warwick filed

suit against Defendants UOP, the California Department of

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Corrections and Rehabilitation (CDCR) and various individuals,
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claiming violations under Title 42 U.S.C. § 1983 and California

United States District Court
For the Northern District of California

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business tort law.

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motions for summary judgment on all claims.

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On July 6, 2010 this Court granted Defendants’

Warwick's Rule 60 motion for relief from judgment is directed

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at the summary adjudication of her § 1983 claim.

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that claim, Warwick alleged that UOP; Ted Rich, Deputy

With respect to

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Commissioner of the Board of Parole Hearings (BPH); Marvin Speed,
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BPH Executive Director; and Matthew Cate, Secretary of CDCR,
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deprived her of her constitutional First Amendment rights.

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Specifically, Warwick claimed that Rich and Speed retaliated

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against her because of her complaints about BPH, including her

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charges that BPH officials were responsible for certain purported

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problems with the CalPAP program and that BPH staff were not

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respecting inmates' due process rights and were committing

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malfeasance.

Warwick alleged that Rich and Speed conspired with

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Mary Swanson, CalPAP program director, to retaliate against
Warwick by suggesting that Warwick had sexual relationships with

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inmates, setting in motion a series of events leading to Warwick's

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losing her clearance.

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In granting Defendants' motion for summary judgment, the

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Court determined that the evidence was clear that Warden Brown

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made the decision to revoke Warwick's clearance.

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The Court found

a close temporal link between the May 20, 2005 complaint letter

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that Warwick sent to Speed and the date Warwick's clearance was
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revoked, May 27, 2005.

However, there was no evidence that Speed

United States District Court
For the Northern District of California

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and Rich were involved in the warden’s decision to revoke

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Warwick’s clearance.1

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about the complaint letter, and no evidence that Speed or Rich

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insinuated to Brown, or anybody else, that Warwick was having sex

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with parolees.

The Court found no evidence that Rich knew

Accordingly, the Court granted summary judgment in

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favor of Rich and Speed.

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As explained in the order, Brown testified that she learned
that Warwick visited an inmate after his revocation proceedings
had concluded, and that, on a different occasion, Warwick took a
parolee to the Ukiah parole office, and then accompanied him or
drove him to a motel. These incidents gave rise to Brown's
concern that Warwick was misusing her status as a CalPAP attorney,
and Brown's decision to revoke Warwick's clearance. The written
explanation CDCR later provided to Warwick stated that her
visiting privileges had been suspended because she had continued
to visit prisoners in her role as a CalPAP attorney after the
legal proceedings concerning parole had concluded. CDCR
considered that such action is "an abuse of the privilege of
attorney visiting and constitutes good cause for a suspension of
visiting privileges."
2 Warwick did not allege a § 1983 claim against Brown, but
the Court noted in its summary judgment order that there was no
evidence that Brown, on her own accord, revoked Warwick's
clearance in retaliation for exercising her First Amendment
rights.
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The Court granted summary judgment in favor of Cate,

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concluding that, in light of the absence of evidence that Rich,

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Speed or Brown revoked Warwick's clearance in retaliation for her

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protected speech, Cate could not be held liable for CDCR's

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policies, practices and customs related to any alleged retaliatory

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clearance revocation.

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Plaintiff's section 1983 claim against UOP failed because
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there was no evidence that state actors engaged in a conspiracy to

United States District Court
For the Northern District of California

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retaliate against Warwick and, thus, UOP, as a private actor and

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alleged co-conspirator could not be held liable for engaging in

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such a conspiracy.

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informed Speed that in order to be a contract attorney with

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CalPAP, an attorney needed a clearance to enter a prison was

Furthermore, an email in which Swanson

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insufficient to raise an inference that they agreed to terminate
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Warwick in retaliation for complaining about UOP, CalPAP, CDCR or
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BPH.

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contractor, UOP did not need to create a "cause" to remove Warwick

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from the CalPAP panel of attorneys.

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Finally, because Warwick was an at-will independent

On July 8, 2010, two days after this Court issued its order
granting summary judgment, the Clerk entered judgment in favor of
Defendants.

On July 9, 2010 Plaintiff made a request to inspect

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records maintained by CDCR, pursuant to California Code of
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Regulations Title 15, section 3450.

Plaintiff received, on August

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5, 2010, various documents, including those that have prompted

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this motion.

In approximately August or September 2010, Warwick
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received a copy of San Quentin's Department Operations Manual

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Supplement, which is also addressed in this motion.

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LEGAL STANDARD
Federal Rule of Civil Procedure 60(b) provides that, "upon
such terms as are just," a court may relieve a party from an order
or final judgment for the following reasons: (1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered
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evidence which by due diligence could not have been discovered in

United States District Court
For the Northern District of California

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time to move for a new trial under Rule 59(b); (3) fraud (whether

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heretofore denominated intrinsic or extrinsic), misrepresentation,

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or other misconduct of an adverse party; (4) the judgment is void;

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(5) the judgment has been satisfied, released or discharged;

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(6) any other reason justifying relief from operation of the

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judgment.

Fed. R. Civ. P. 60(b).

A motion for relief under Rule

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60(b) must be made within reasonable time, and such a motion under
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subsections (1), (2) and (3) must be made no more than a year

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after entry of the judgment or order.

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Fed. R. Civ. P. 60(c).

"Relief from judgment on the basis of newly discovered

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evidence is warranted if (1) the moving party can show the

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evidence relied on in fact constitutes 'newly discovered evidence'

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within the meaning of Rule 60(b); (2) the moving party exercised

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due diligence to discover this evidence; and (3) the newly
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discovered evidence must be of 'such magnitude that production of

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it earlier would have been likely to change the disposition of the

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case.'"

Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082,
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1093 (9th Cir. 2003) (quoting Coastal Transfer Co. v. Toyota Motor

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Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987)).

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Under Rule 60(b)(3), the movant must (1) prove by clear and

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convincing evidence that the verdict was obtained through fraud,

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misrepresentation, or other misconduct; and (2) establish that the

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conduct complained of prevented the losing party from fully and

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fairly presenting his or her case or defense.

Casey v.

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Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir. 2004); Jones v.

United States District Court
For the Northern District of California

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Aero/Chem Corp., 921 F.2d 875, 878-79 (9th Cir. 1990).

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Rule 60(b)(3) "require[s] that fraud . . . not be discoverable by

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due diligence before or during the proceedings.

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at 1260.

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Casey, 362 F.3d

DISCUSSION

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I. Jurisdiction
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On August 5, 2010, Warwick filed a notice of appeal to the
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Ninth Circuit, seeking review of this Court's order granting

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summary judgment in Defendants' favor and entry of judgment

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against her.

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appeal directed at the Court's order denying her motion to oppose

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costs.

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Subsequently, Warwick filed a second notice of

On July 9, 2011, while both appeals were pending, Warwick

filed the present motion.

The Ninth Circuit's August 10, 2011

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order notified Warwick that the district court lacked jurisdiction
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to consider her proposed Rule 60(b) motion for relief without a

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limited remand from the Ninth Circuit.

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Warwick to file a motion for limited remand accompanied by a
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The court instructed

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written statement that the district court wished to entertain the

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proposed motion, or an opening brief, by October 3, 2011.

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responded by filing a motion for voluntary dismissal of her

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appeals.

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motion, pursuant to Federal Rule of Appellate Procedure 42(b).

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Warwick

On October 5, 2011, the Ninth Circuit granted the

Because the appeals have been dismissed, this Court has

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jurisdiction to consider Warwick's Rule 60 motion for relief.
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II. Timeliness

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For the Northern District of California

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Warwick filed her Rule 60 motion a year and a day after

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judgment entered, and completed the submission of her supporting

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declarations two days after that.

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untimely.

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filing, and intended to file a motion for an extension of time but

Thus, Warwick’s motion is

Warwick stated that she was having trouble with the

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did not do so.

Warwick also stated that she has been facing

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health problems and other stressful situations.

It is not clear

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that these problems explain the delay that occurred between when

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she received new information from CDCR in August and September

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2010 and when she filed her motion for relief in July 2011.

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However, even if the merits of Warwick's motion are considered,

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relief from judgment is unwarranted.

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II. Newly Discovered Evidence

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Warwick points to three items of purported newly discovered
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evidence to argue that relief from judgment is warranted.
The first item is a memorandum dated June 3, 2005 from San
Quentin sergeant E.J. Hinkle to Patricia Miller.
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The memorandum

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states that on April 22, 2005, Warwick scheduled a visit with an

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inmate,3 pursuant to the Valdivia injunction, although the inmate

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had already been offered a deal and accepted it.

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states that Warwick was informed that she had to go through

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"normal Attorney visits" to see the inmate.

The memorandum

Warwick contends that

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the memorandum establishes that "one of the reasons" given to
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justify revocation of her clearance was pretextual.

According to

Warwick, there would have been no need for her to attempt to sign

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United States District Court
For the Northern District of California

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in as a CalPAP attorney when she was approved for regular attorney

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visits.

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Warwick misrepresented herself to gain access to San Quentin and

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thus engaged in inappropriate conduct.

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Warwick propounds this evidence to attack testimony that

However, Warwick's

argument misconstrues the reason her clearance was revoked; it was

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revoked because Brown was concerned that Warwick's ongoing
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relationship with an inmate and parolee after the parole

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revocation process was inappropriate--not that Warwick

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misrepresented the type of visit.

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nothing to cure the deficiencies in proof that the Court

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identified in granting summary judgment on the § 1983 claims.

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Furthermore, this evidence does

The second item Warwick has identified is a San Quentin

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visitors log, dated June 1, 2005, which listed Warwick's visits to
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inmate Hodge on May 11 and May 17, 2005.

Just as she argued with

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The name of the inmate is redacted from the memorandum, but
in her briefing, Warwick appears to admit that the inmate in
question was Hodge.
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respect to the Hinkle memorandum, Warwick claims that the log

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shows that the reasons for the revocation of her clearance were

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false and pretextual, in that it demonstrates that she was

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approved for regular attorney visits in May with Hodge.

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same reasons explained above, the log does not amount to new

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For the

evidence that warrants relief from this Court's summary judgment

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order.
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Warwick also argues that the log shows how easily one could

United States District Court
For the Northern District of California

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verify the basis for her May visits and, thus, verify an

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allegation before revoking a clearance based on unsubstantiated

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rumors.

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deficiencies in proof that were the basis for the Court's

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determination.

This is irrelevant because it does not cure the

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The third newly discovered document is the second page of an
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April 14, 2006 letter sent from John Dovey to Warwick.

The second

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page of the letter shows that a blind carbon copy was sent to

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Jeanne S. Woodford, along with other CDCR officials, informing

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them of Warwick's inquiry regarding the clearance revocation.

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Even if Warwick exercised due diligence to discover it, there is

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no reason to believe that it would have affected the outcome of

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the case.

Warwick posits that if she had received the letter she

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would have deposed Woodford and her testimony would have likely
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showed a failure to follow proper procedure.

However, Warwick

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provides no evidence, such as a declaration by Woodford, to

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establish what Woodford would have likely said in a deposition.
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Warwick's argument makes clear that the letter itself would not

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have changed the case; it would have simply prompted further

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discovery request.

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In sum, none of the three newly discovered documents

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identified by Warwick justify her request for relief from

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judgment.

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III. Fraud
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Warwick contends that the CDCR committed fraud by withholding

United States District Court
For the Northern District of California

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certain evidence during discovery.

Specifically, Warwick points

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to the withholding of San Quentin's Department Operations Manual

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Supplement, which Warwick refers to as "SQ Operational Plans" or

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"SQ Plans," concerning visiting and the exclusions of visitors.

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Warwick contends that the withholding of this document prevented

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her from questioning Warden Brown or Warden Stokes about the
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policies set forth therein.

It is troubling that, although

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Warwick requested "San Quentin Institutional Operation Plans"

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regarding gate stops in February 2009, she did not receive the

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Supplement until September 2010.

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Supplement on which Warwick relies is not materially different

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from a provision regarding exclusion of visitors, which was

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However, the provision of the

available as part of California Code of Regulations

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section 3176.3(f).

Both provide for written notification to the

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person excluded, as well as a notification that, upon request, the

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person may meet with the official who ordered the exclusion.

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Warwick deposed Chief Deputy Warden John Stokes, regarding the
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clearance revocation's compliance with section 3176.3(f).

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Furthermore, it is not clear that the Supplement could not have

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been uncovered through due diligence in the discovery process.

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fact, Plaintiff's then counsel sought to file a motion to compel

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the production of documents, but it was denied because it was

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untimely.

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Next, Warwick asserts that emails were destroyed.

Her

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argument is not clear in that at certain points she refers to

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For the Northern District of California

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emails that were actually produced during discovery.

Warwick

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appears to criticize CDCR's email retention practices, although

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the basis for this criticism, including the State Records

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Management Act, the Department Operations Manual, the Records

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Retention Schedules and related deposition testimony, were

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available during the litigation, such that this issue could have
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been raised earlier.

Warwick's bare allegation of perjury against

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Mike Miller is unavailing.

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that six months to one year of Valdivia Taskforce records are

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missing.

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inspected the Valdivia Taskforce records and has failed to find

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the records.

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Nor has Warwick supported her claim

She has made a Public Records Act request and personally

However, Warwick does not explain why she believes

the records were destroyed.

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Warwick has failed to point to clear and convincing evidence
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that Defendants won the judgment through fraud, misrepresentation
or other misconduct.

Relief under Rule 60(b)(3) is not warranted.

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IV. Fraud on the Court
In addition to Rule 60(b), Warwick has invoked Federal Rule

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of Civil Procedure 60(d)(3) as the basis for her motion for relief

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from judgment.

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court's power to: . . . (3) set aside judgment for fraud on the

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court."

Rule 60(d) states that the "rule does not limit a

Fed. R. Civ. P. 60(d)(3).

Warwick has not shown a fraud

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on the Court.

The Court's inherent power to vacate or amend a

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judgment obtained by fraud is narrowly construed, "applying only

United States District Court
For the Northern District of California

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to fraud that defiles the court or is perpetrated by officers of

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the court."

United States v. Chapman, 642 F.3d 1236, 1240 (9th

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Cir. 2011).

Fraud on the court occurs when "the fraud rises to

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the level of an unconscionable plan or scheme which is designed to

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improperly influence the court in its decision."

Id. (internal

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quotation marks omitted).

Although Warwick claims fraud on the

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court, she does not explain how such a fraud occurred and the
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evidence she has submitted does not support such a finding.
CONCLUSION

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Warwick's motion for relief from judgment is DENIED.

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IT IS SO ORDERED.

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Dated: 11/15/2011
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CLAUDIA WILKEN
United States District Judge

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