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)
1
2
3
4
5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8
JOANNE WARWICK,
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
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
20
(d)(3).
Docket No. 224.
Defendants oppose the motion.
Having
21
22
23
24
25
considered all of the parties' submissions, the Court DENIES the
motion.
BACKGROUND
This lawsuit arises from Warwick’s termination as a contract
26
attorney for the California Parole Advocacy Program (CalPAP).
27
CalPAP trains, appoints and assigns panel-contracted attorneys to
28
1
parolees facing parole revocation proceedings.
2
by Defendant University of Pacific (UOP) through a contract with
3
the State of California.
4
panel of attorneys because her gate clearance at San Quentin
5
prison was revoked.
6
CalPAP is operated
CalPAP removed Warwick from the CalPAP
In response to her termination, Warwick filed
suit against Defendants UOP, the California Department of
7
Corrections and Rehabilitation (CDCR) and various individuals,
8
9
claiming violations under Title 42 U.S.C. § 1983 and California
United States District Court
For the Northern District of California
10
business tort law.
11
motions for summary judgment on all claims.
12
On July 6, 2010 this Court granted Defendants’
Warwick's Rule 60 motion for relief from judgment is directed
13
at the summary adjudication of her § 1983 claim.
14
that claim, Warwick alleged that UOP; Ted Rich, Deputy
With respect to
15
Commissioner of the Board of Parole Hearings (BPH); Marvin Speed,
16
BPH Executive Director; and Matthew Cate, Secretary of CDCR,
17
18
deprived her of her constitutional First Amendment rights.
19
Specifically, Warwick claimed that Rich and Speed retaliated
20
against her because of her complaints about BPH, including her
21
charges that BPH officials were responsible for certain purported
22
problems with the CalPAP program and that BPH staff were not
23
respecting inmates' due process rights and were committing
24
malfeasance.
Warwick alleged that Rich and Speed conspired with
25
26
27
Mary Swanson, CalPAP program director, to retaliate against
Warwick by suggesting that Warwick had sexual relationships with
28
2
1
inmates, setting in motion a series of events leading to Warwick's
2
losing her clearance.
3
In granting Defendants' motion for summary judgment, the
4
Court determined that the evidence was clear that Warden Brown
5
made the decision to revoke Warwick's clearance.
6
The Court found
a close temporal link between the May 20, 2005 complaint letter
7
that Warwick sent to Speed and the date Warwick's clearance was
8
9
revoked, May 27, 2005.
However, there was no evidence that Speed
United States District Court
For the Northern District of California
10
and Rich were involved in the warden’s decision to revoke
11
Warwick’s clearance.1
12
about the complaint letter, and no evidence that Speed or Rich
13
insinuated to Brown, or anybody else, that Warwick was having sex
14
with parolees.
The Court found no evidence that Rich knew
Accordingly, the Court granted summary judgment in
15
favor of Rich and Speed.
2
16
17
18
19
20
21
22
23
24
25
26
27
28
1
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.
3
1
The Court granted summary judgment in favor of Cate,
2
concluding that, in light of the absence of evidence that Rich,
3
Speed or Brown revoked Warwick's clearance in retaliation for her
4
protected speech, Cate could not be held liable for CDCR's
5
policies, practices and customs related to any alleged retaliatory
6
clearance revocation.
7
Plaintiff's section 1983 claim against UOP failed because
8
9
there was no evidence that state actors engaged in a conspiracy to
United States District Court
For the Northern District of California
10
retaliate against Warwick and, thus, UOP, as a private actor and
11
alleged co-conspirator could not be held liable for engaging in
12
such a conspiracy.
13
informed Speed that in order to be a contract attorney with
14
CalPAP, an attorney needed a clearance to enter a prison was
Furthermore, an email in which Swanson
15
insufficient to raise an inference that they agreed to terminate
16
Warwick in retaliation for complaining about UOP, CalPAP, CDCR or
17
18
BPH.
19
contractor, UOP did not need to create a "cause" to remove Warwick
20
from the CalPAP panel of attorneys.
21
22
23
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
24
records maintained by CDCR, pursuant to California Code of
25
26
Regulations Title 15, section 3450.
Plaintiff received, on August
27
5, 2010, various documents, including those that have prompted
28
this motion.
In approximately August or September 2010, Warwick
4
1
received a copy of San Quentin's Department Operations Manual
2
Supplement, which is also addressed in this motion.
3
4
5
6
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,
7
inadvertence, surprise, or excusable neglect; (2) newly discovered
8
9
evidence which by due diligence could not have been discovered in
United States District Court
For the Northern District of California
10
time to move for a new trial under Rule 59(b); (3) fraud (whether
11
heretofore denominated intrinsic or extrinsic), misrepresentation,
12
or other misconduct of an adverse party; (4) the judgment is void;
13
(5) the judgment has been satisfied, released or discharged;
14
(6) any other reason justifying relief from operation of the
15
judgment.
Fed. R. Civ. P. 60(b).
A motion for relief under Rule
16
60(b) must be made within reasonable time, and such a motion under
17
18
subsections (1), (2) and (3) must be made no more than a year
19
after entry of the judgment or order.
20
Fed. R. Civ. P. 60(c).
"Relief from judgment on the basis of newly discovered
21
evidence is warranted if (1) the moving party can show the
22
evidence relied on in fact constitutes 'newly discovered evidence'
23
within the meaning of Rule 60(b); (2) the moving party exercised
24
due diligence to discover this evidence; and (3) the newly
25
26
discovered evidence must be of 'such magnitude that production of
27
it earlier would have been likely to change the disposition of the
28
case.'"
Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082,
5
1
1093 (9th Cir. 2003) (quoting Coastal Transfer Co. v. Toyota Motor
2
Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987)).
3
Under Rule 60(b)(3), the movant must (1) prove by clear and
4
convincing evidence that the verdict was obtained through fraud,
5
misrepresentation, or other misconduct; and (2) establish that the
6
conduct complained of prevented the losing party from fully and
7
fairly presenting his or her case or defense.
Casey v.
8
9
Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir. 2004); Jones v.
United States District Court
For the Northern District of California
10
Aero/Chem Corp., 921 F.2d 875, 878-79 (9th Cir. 1990).
11
Rule 60(b)(3) "require[s] that fraud . . . not be discoverable by
12
due diligence before or during the proceedings.
13
at 1260.
14
Casey, 362 F.3d
DISCUSSION
15
I. Jurisdiction
16
On August 5, 2010, Warwick filed a notice of appeal to the
17
18
Ninth Circuit, seeking review of this Court's order granting
19
summary judgment in Defendants' favor and entry of judgment
20
against her.
21
appeal directed at the Court's order denying her motion to oppose
22
costs.
23
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
24
order notified Warwick that the district court lacked jurisdiction
25
26
to consider her proposed Rule 60(b) motion for relief without a
27
limited remand from the Ninth Circuit.
28
Warwick to file a motion for limited remand accompanied by a
6
The court instructed
1
written statement that the district court wished to entertain the
2
proposed motion, or an opening brief, by October 3, 2011.
3
responded by filing a motion for voluntary dismissal of her
4
appeals.
5
motion, pursuant to Federal Rule of Appellate Procedure 42(b).
6
Warwick
On October 5, 2011, the Ninth Circuit granted the
Because the appeals have been dismissed, this Court has
7
jurisdiction to consider Warwick's Rule 60 motion for relief.
8
9
II. Timeliness
United States District Court
For the Northern District of California
10
Warwick filed her Rule 60 motion a year and a day after
11
judgment entered, and completed the submission of her supporting
12
declarations two days after that.
13
untimely.
14
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
15
did not do so.
Warwick also stated that she has been facing
16
health problems and other stressful situations.
It is not clear
17
18
that these problems explain the delay that occurred between when
19
she received new information from CDCR in August and September
20
2010 and when she filed her motion for relief in July 2011.
21
However, even if the merits of Warwick's motion are considered,
22
relief from judgment is unwarranted.
23
II. Newly Discovered Evidence
24
Warwick points to three items of purported newly discovered
25
26
27
28
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.
7
The memorandum
1
states that on April 22, 2005, Warwick scheduled a visit with an
2
inmate,3 pursuant to the Valdivia injunction, although the inmate
3
had already been offered a deal and accepted it.
4
states that Warwick was informed that she had to go through
5
"normal Attorney visits" to see the inmate.
The memorandum
Warwick contends that
6
the memorandum establishes that "one of the reasons" given to
7
8
justify revocation of her clearance was pretextual.
According to
Warwick, there would have been no need for her to attempt to sign
10
United States District Court
For the Northern District of California
9
in as a CalPAP attorney when she was approved for regular attorney
11
visits.
12
Warwick misrepresented herself to gain access to San Quentin and
13
thus engaged in inappropriate conduct.
14
Warwick propounds this evidence to attack testimony that
However, Warwick's
argument misconstrues the reason her clearance was revoked; it was
15
revoked because Brown was concerned that Warwick's ongoing
16
17
relationship with an inmate and parolee after the parole
18
revocation process was inappropriate--not that Warwick
19
misrepresented the type of visit.
20
nothing to cure the deficiencies in proof that the Court
21
identified in granting summary judgment on the § 1983 claims.
22
Furthermore, this evidence does
The second item Warwick has identified is a San Quentin
23
visitors log, dated June 1, 2005, which listed Warwick's visits to
24
25
inmate Hodge on May 11 and May 17, 2005.
Just as she argued with
26
3
27
28
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.
8
1
respect to the Hinkle memorandum, Warwick claims that the log
2
shows that the reasons for the revocation of her clearance were
3
false and pretextual, in that it demonstrates that she was
4
approved for regular attorney visits in May with Hodge.
5
same reasons explained above, the log does not amount to new
6
For the
evidence that warrants relief from this Court's summary judgment
7
order.
8
9
Warwick also argues that the log shows how easily one could
United States District Court
For the Northern District of California
10
verify the basis for her May visits and, thus, verify an
11
allegation before revoking a clearance based on unsubstantiated
12
rumors.
13
deficiencies in proof that were the basis for the Court's
14
determination.
This is irrelevant because it does not cure the
15
The third newly discovered document is the second page of an
16
April 14, 2006 letter sent from John Dovey to Warwick.
The second
17
18
page of the letter shows that a blind carbon copy was sent to
19
Jeanne S. Woodford, along with other CDCR officials, informing
20
them of Warwick's inquiry regarding the clearance revocation.
21
Even if Warwick exercised due diligence to discover it, there is
22
no reason to believe that it would have affected the outcome of
23
the case.
Warwick posits that if she had received the letter she
24
would have deposed Woodford and her testimony would have likely
25
26
showed a failure to follow proper procedure.
However, Warwick
27
provides no evidence, such as a declaration by Woodford, to
28
establish what Woodford would have likely said in a deposition.
9
1
Warwick's argument makes clear that the letter itself would not
2
have changed the case; it would have simply prompted further
3
discovery request.
4
In sum, none of the three newly discovered documents
5
identified by Warwick justify her request for relief from
6
judgment.
7
III. Fraud
8
9
Warwick contends that the CDCR committed fraud by withholding
United States District Court
For the Northern District of California
10
certain evidence during discovery.
Specifically, Warwick points
11
to the withholding of San Quentin's Department Operations Manual
12
Supplement, which Warwick refers to as "SQ Operational Plans" or
13
"SQ Plans," concerning visiting and the exclusions of visitors.
14
Warwick contends that the withholding of this document prevented
15
her from questioning Warden Brown or Warden Stokes about the
16
policies set forth therein.
It is troubling that, although
17
18
Warwick requested "San Quentin Institutional Operation Plans"
19
regarding gate stops in February 2009, she did not receive the
20
Supplement until September 2010.
21
Supplement on which Warwick relies is not materially different
22
from a provision regarding exclusion of visitors, which was
23
However, the provision of the
available as part of California Code of Regulations
24
section 3176.3(f).
Both provide for written notification to the
25
26
person excluded, as well as a notification that, upon request, the
27
person may meet with the official who ordered the exclusion.
28
Warwick deposed Chief Deputy Warden John Stokes, regarding the
10
1
clearance revocation's compliance with section 3176.3(f).
2
Furthermore, it is not clear that the Supplement could not have
3
been uncovered through due diligence in the discovery process.
4
fact, Plaintiff's then counsel sought to file a motion to compel
5
the production of documents, but it was denied because it was
6
In
untimely.
7
Next, Warwick asserts that emails were destroyed.
Her
8
9
argument is not clear in that at certain points she refers to
United States District Court
For the Northern District of California
10
emails that were actually produced during discovery.
Warwick
11
appears to criticize CDCR's email retention practices, although
12
the basis for this criticism, including the State Records
13
Management Act, the Department Operations Manual, the Records
14
Retention Schedules and related deposition testimony, were
15
available during the litigation, such that this issue could have
16
been raised earlier.
Warwick's bare allegation of perjury against
17
18
Mike Miller is unavailing.
19
that six months to one year of Valdivia Taskforce records are
20
missing.
21
inspected the Valdivia Taskforce records and has failed to find
22
the records.
23
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.
24
Warwick has failed to point to clear and convincing evidence
25
26
27
that Defendants won the judgment through fraud, misrepresentation
or other misconduct.
Relief under Rule 60(b)(3) is not warranted.
28
11
1
2
IV. Fraud on the Court
In addition to Rule 60(b), Warwick has invoked Federal Rule
3
of Civil Procedure 60(d)(3) as the basis for her motion for relief
4
from judgment.
5
court's power to: . . . (3) set aside judgment for fraud on the
6
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
7
on the Court.
The Court's inherent power to vacate or amend a
8
9
judgment obtained by fraud is narrowly construed, "applying only
United States District Court
For the Northern District of California
10
to fraud that defiles the court or is perpetrated by officers of
11
the court."
United States v. Chapman, 642 F.3d 1236, 1240 (9th
12
Cir. 2011).
Fraud on the court occurs when "the fraud rises to
13
the level of an unconscionable plan or scheme which is designed to
14
improperly influence the court in its decision."
Id. (internal
15
quotation marks omitted).
Although Warwick claims fraud on the
16
court, she does not explain how such a fraud occurred and the
17
18
evidence she has submitted does not support such a finding.
CONCLUSION
19
20
Warwick's motion for relief from judgment is DENIED.
21
IT IS SO ORDERED.
22
23
Dated: 11/15/2011
24
CLAUDIA WILKEN
United States District Judge
25
26
27
28
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?