Carbajal v. Warner et al
ORDER denying 905 Notice to Court of Fraud and Motion to Reopen Case Against State Defendants by Judge Philip A. Brimmer on 6/28/17. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02862-PAB-KLM
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
This matter is before the Court on plaintiff’s Notice to Court of Fraud and Motion
to Reopen Case Against State Defendants [Docket No. 905]. 1 The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
On November 23, 2010, plaintiff filed his complaint in this case seeking relief
under 42 U.S.C. § 1983. Docket No. 1. On January 6, 2012, plaintiff filed his third
amended complaint, Docket No. 254, which alleged claims against defendants Carrol
Warner, David Romero, and Joe Quintana (the “State defendants”) for malicious
prosecution and conspiracy to commit malicious prosecution. Id. at 16-17, ¶¶ 78-82.
Because plaintiff is proceeding pro se, the Court construes his filings liberally.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
During the time period discussed in plaintiff’s complaint, defendants Warner, Romero,
and Quintana were employees of the probation department for the Seventh Judicial
District of Colorado. See Docket No. 694-1 at 1-2, ¶ 1; Docket No. 694-5 at 1-2, ¶ 1;
Docket No. 694-8 at 2, ¶ 1. Plaintiff additionally alleged claims against defendant
Quintana for unreasonable search and seizure and conspiracy to commit unreasonable
search and seizure. Docket No. 254 at 19-20, ¶¶ 91-95.
On July 6, 2015, the State defendants filed a motion for summary judgment.
Docket No. 694. On February 17, 2016, the magistrate judge recommended that the
Court grant the State defendants’ motion for summary judgment. Docket No. 783. On
March 29, 2016, the Court accepted the relevant portion of the magistrate judge’s
recommendation and dismissed the State defendants from this case. Docket No. 804.
On January 6, 2017, plaintiff filed the instant motion seeking to “[r]eopen his
claims against the Carol Warner, Joe Quintana, and David Romero” and to add two
Colorado Department of Corrections (“CDOC”) parole officers to this case. Docket
No. 905 at 1. In support of his request, plaintiff states that CDOC responded to a
subpoena in an unrelated action and disclosed a “Chronlog ,” which “revealed the
identity of the two unknown parole officers that had illegaly [sic] invaded [plaintiff’s]
home” and “revealed evidence of a conspiracy between Joe Quintana and his parole
officer Gary Fear.”2 Id. In addition, plaintiff attaches two documents to his motion
allegedly showing that defendant Warner was involved in his probation supervision in
CDOC was originally a defendant in this case. See Docket No. 1. On October
19, 2011, Judge Blackburn dismissed CDOC due to a lack of subject matter jurisdiction.
See Docket No. 229 at 8, ¶ 10; see also Docket No. 198 at 15-16. As a result of its
dismissal, CDOC does not appear to have participated in discovery in this matter.
2004 and 2005. Id. at 4. Plaintiff states that all of this information was “fraudulently
concealed” and therefore seeks relief under Fed. R. Civ. P. 60(b)(3). Id. at 4-5.
II. STANDARD OF REVIEW
Rule 60(b) relief is “extraordinary and may only be granted in exceptional
circumstances.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.
2000). To prevail on a Rule 60(b) motion, a party must show, among other things, that
he “discovered [new] evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial,” there is evidence of “fraud . . .
misrepresentation, or misconduct by an opposing party,” or he is entitled to relief for
“any other reason.” Fed. R. Civ. P. 60(b)(2), (3), (6). Plaintiff’s arguments fall under
Rule 60(b)(3), which allows a court to relieve a party from a final judgment based on
“fraud . . ., misrepresentation, or misconduct by an opposing party.“ Fed. R. Civ. P.
The party relying on Rule 60(b)(3) “must show ‘clear and convincing proof’ of
fraud, misrepresentation, or misconduct.” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d
1281, 1290 (10th Cir. 2005) (citation omitted). “Intent to defraud is an ‘absolute
prerequisite’ to a finding of fraud on the court.” Id. at 1291 (citing Robinson v. Audi
Plaintiff states that “[a] party may also obtain relief from a judgment which is
void . . . for any other reason justifying relief from the operation of the judgment.”
Docket No. 905 at 5. Plaintiff is correct that Rule 60(b)(6) provides that a court may
relieve a party from final judgment or an order for “any other reason that justifies relief.”
Fed. R. Civ. P. 60(b)(6). However, “[t]he clear import of the language of clause (b)(6) is
that the clause is restricted to reasons other than those enum erated in the previous five
clauses.” United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002). Because
plaintiff’s claim falls within Rule 60(b)(3), he cannot proceed under Rule 60(b)(6).
Docket No. 905 at 5.
Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995)). In add ition, “the challenged
behavior must substantially have interfered with the aggrieved party’s ability fully and
fairly to prepare for and proceed at trial.” Id. at 1290 (citation omitted; emphasis in
original). Rule 60(b)(3) “is aimed at judgments which are unfairly obtained, not at those
which are factually incorrect.” Id.
Plaintiff argues that he is entitled to relief pursuant to Rule 60(b)(3) because
defendant Jeffrey Watts, Watts’ counsel, the State defendants, or the CDOC
fraudulently concealed materials pertinent to his claims. Docket No. 905 at 2.
According to plaintiff, several defendants, including defendant Watts, subpoenaed
plaintiff’s CDOC file and produced a bates stamped copy of that file to plaintiff. Docket
No. 931 at 1. The file that these defendants produced to plaintiff did not contain a
Chronlog. Id. In a separate proceeding, CDOC responded to a subpoena issued by
plaintiff and “disclosed its Notes and Narratives in its CHRONLOG” and other materials
that were not part of the file produced to plaintiff in this case. Docket No. 905 at 1.
According to plaintiff, the Chronlog produced in the separate proceeding provides the
identities of two parole officers who illegally searched plaintiff’s home and contradicts
defendant Quintana’s affidavit in support of summary judgment. Id. at 2-3. In pertinent
part, the Chronlog describes the following incident on October 23, 2009:
In discussing this case at the office, it appears that CPO Burch and
Bogner were at this residence searching for ISP escapee . CPOs were
allowed in by 3 females who allowed search. Escapee  was not located.
Residence was chosen due to , cousin of  who returned S ISP
equipment. She found it and returned as she thought there was a reward
for the return. Search of residence was consentual, and parties in
residence stated to CPOs that escapee  stayed at thisresidence [sic] the
weekend of October 17th, 2009.
Docket No. 905 at 12 (capitalization modified). Plaintiff states that, had counsel for
defendant Watts or the CDOC produced the Chronlog, plaintiff “would have named
Parole Officer[s] Burch and Bogner, and his claims against these parties would never
had [sic] been dismissed.” Docket No. 905 at 3.
In addition, the Chronlog states that, on September 23, 2005, “Gary
Fear–Received call from Joe Quintanna  O. is on duel [sic] supervision-asked about
how client is doing-will have O. call his PO & send release to Progressive Therapy.”
Docket No. 905 at 13. Plaintiff argues that this Chronlog entry contradicts the
declaration submitted by defendant Quintana in support of summary judgment, which
Probation supervision of Mr. Carbajal was transferred to me on or about
July 18, 2006. At that time, Mr. Carbajal was in jail. He was not released
from custody until February 2007. I did not play any role in Mr. Carbajal’s
supervision prior to that time. I did not know Mr. Carbajal before I began
supervising his probation.
Docket No. 694-1 at 1-2, ¶ 1.
Last, plaintiff points to “two other documents  produced in this separate civil
proceeding that had also been concealed,” which plaintiff claims show that defendant
Carrol Warner was involved in the supervision of plaintiff from 2004 to 2005. Docket
No. 905 at 4. In support of summary judgment, defendant Warner stated that she
“never supervised Mr. Carbajal.” Docket No. 694-8 at 2, ¶ 3.
Plaintiff does not allege, let alone show by clear and convincing evidence, that
defendant Watts or his counsel had possession of the Chronlog or other documents he
claims were fraudulently concealed. Plaintiff only alleges that the materials were not
contained in the copy of the CDOC materials produced to him by defendant Watts’
counsel. Docket No. 905 at 7-8 (“no CHRONLOG was ever turned over . . . [t]his is
evidenced by the discovery CD’s and disclosures provide by the Denver Defendants”).
Defendant Watts acknowledges this, stating that his counsel “reviewed the documents
obtained during discovery and Plaintiff is correct that no ‘Chronlogs’ were contained
within the information obtained from CDOC.” Docket No. 916 at 2, ¶ 3. According to
defendant Watts’ understanding, “‘Chronlogs’ are not kept in an inmate’s working file,
but, rather, ‘Chronlogs’ are maintained electronically. . . . [A] separate request is
necessary for such documents and counsel did not make any such request to CDOC in
this action.” Id. Thus, according to defendant Watts, he was never in possession of the
Chronlog. Because plaintiff has not presented any evidence that defendant Watts or
his counsel possessed the Chronlog or the materials related to defendant Warner,
plaintiff cannot claim that they fraudulently concealed such materials.
Plaintiff similarly claims that the State defendants concealed the Chronlog and
other materials. Docket No. 905 at 3-4. Plaintiff, however, has not shown that the
State defendants possessed of any of the documents at issue, communicated about
the materials with the other parties, or otherwise acted in a manner suggesting
fraudulent intent. Accordingly, plaintiff has not provided clear and convincing evidence
that the State defendants fraudulently concealed the documents at issue.
Based on the parties’ submissions, CDOC was the only entity that possessed the
Chronlog and other materials attached to plaintiff’s motion. Plaintiff does not provide
clear and convincing evidence of either concealment or deceptive intent by CDOC.4
Plaintiff never subpoenaed materials from CDOC in this case, Docket No. 931 at 1, and
the materials that CDOC produced to defendant Watts apparently complied with Watts’
request for plaintiff’s file. Docket No. 916 at 2, ¶ 3. Plaintiff has not presented evidence
that CDOC was obligated to provide the Chronlog pursuant to any discovery request in
this case. See Zurich, 426 F.3d at 1292 (“[A] failure to disclose requested information
during discovery may constitute misconduct under Rule 60(b)(3). . . . However, this
usually requires the violation of a specific discovery request or order.”). Moreover,
despite its alleged deceptive intent, CDOC produced the Chronlog and other materials
to plaintiff in a separate proceeding. Docket No. 905 at 1. While plaintiff states that the
“State Defendants concealed these documents with the assistance of Hall & Evans
and/or The Colorado Department of Corrections,” Docket No. 905 at 3, plaintiff does not
explain what supposedly led CDOC to fraudulently conceal these materials in one
proceeding and disclose them in another.
In his reply, plaintiff states that CDOC “had a legal duty to disclose these
documents; and provide the identity of officers upon request under the Open Records
Act.” Docket No. 931 at 6. However, Rule 60(b)(3) requires more than just a refusal to
produce documents; instead, the rule requires that a plaintiff demonstrate by clear and
Plaintiff seeks to add claims against “Parole Officer[s] Burch and Bogner” in
connection with an incident “when they illegally invade [sic] [plaintiff’s] home in an effort
to intimidate and harass hims [sic].” Docket No. 905 at 6-7. Plaintiff states that he
“relied to his detriment on the misrepresentations and false information provide [sic] to
him by the [CDOC],” Docket No. 905 at 7, but plaintiff does not provide documentation
or other materials showing the alleged misrepresentations. Because there is no
evidence in the record supporting plaintiff’s claims, CDOC’s prior representations do not
provide grounds for plaintiff’s requested relief.
convincing evidence that defendant had “an intent to deceive or defraud the court, by
means of a deliberately planned and carefully executed scheme.” Yapp v. Excel Corp.,
186 F.3d 1222, 1231 (10th Cir. 1999). CDOC’s alleged failure to provide these
materials in response to plaintiff’s open records request does not demonstrate the
requisite intent to deceive.
Plaintiff has not presented clear and convincing evidence that CDOC – or
another party to this case in possession of the Chronlog and the other materials –
conspired to deceive or defraud the Court by concealing materials pertinent to plaintiff’s
It is therefore
ORDERED that plaintiff’s Notice to Court of Fraud and Motion to Reopen Case
Against State Defendants [Docket No. 905] is denied.
DATED June 28, 2017.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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