Vreeland v. Fisher et al

Filing 408

ORDER. ORDERED that plaintiff's Motion for Relief from Judgment Pursuant to Fed. R. Civ. P. Rule 60 384 is DENIED for lack of jurisdiction. ORDERED that plaintiffs Motion for Leave to Exceed Page Limits and to Attach Exhibits to Plaintiff's Supplemental Prisoner Complaint 386 is DENIED as moot. ORDERED that plaintiff's Motion for Leave to Supplement Complaint After Summary Judgment 387 is DENIED as moot. Signed by Judge Philip A. Brimmer on 12/28/16. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 13-cv-02422-PAB-KMT
DELMART E.J.M. VREELAND, II,
Plaintiff,
v.
THOMAS C. FISHER, MD,
Defendant.

ORDER

This matter is before the Court on the plaintiff’s Motion for Relief from Judgment
Pursuant to Fed. R. Civ. P. Rule 60 [Docket No. 384], Motion for Leave to Supplement
Complaint After Summary Judgment [Docket No. 387], and Motion for Leave to Exceed
Page Limits and to Attach Exhibits to Plaintiff’s Supplemental Prisoner Complaint
[Docket No. 386].
The Court entered summary judgment in favor of the last remaining defendant,
Dr. Thomas Fisher, on March 29, 2016. Docket No. 359. T he same day, the Court
ordered production of the attachments to certain emails to defendant’s expert witness
Dr. Tiona and stated that, if “the attachments that defendants have not yet provided,
once produced, provide any basis for the Court to revisit its order on defendant’s motion
for summary judgment, plaintiff may file a motion for relief from judgment pursuant to
Fed. R. Civ. P. 60(b)(2).” Docket No. 360 at 11 n.5. On April 13, 2016, the Clerk

entered final judgment. Docket No. 366. On April 18, 2016, plaintif f filed his notice of
appeal. Docket No. 368.
On June 6, 2016, while his appeal was pending, plaintiff sought limited remand
to file the motion for relief from judgment, claiming that the motion he intended to file
was contemplated by the Court’s production order. Appeal No. 16-1131, Doc.
01019633302 at 3. On June 8, 2016, the T enth Circuit denied his request, stating
plaintiff must first seek an order from this Court indicating that it would grant such a
motion if it had jurisdiction. Id., Doc. 01019634590 at 1; Docket No. 384 at 33. Plaintif f
then filed the present motions on July 18, 2016. Dockets No. 384, 386, 387.
Relief after judgment is discretionary and only appropriate for “(1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Because
such relief is “extraordinary and may only be granted in exceptional circumstances,”
The Servants of the Paraclete v. John Does, 204 F.3d 1005, 1009 (10th Cir. 2000),
parties seeking relief under Rule 60(b) have a high hurdle to overcome; a Rule 60(b)
motion should not be treated as a substitute f or an appeal. Zurich N. Am. v. Matrix
Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005). Rule 60(b)(6) has been described as
a “grand reservoir of equitable power to do justice in a particular case.” Pierce v. Cook
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& Co., Inc., 518 F.2d 720, 722 (10th Cir. 1975) (en banc) (citation om itted). Relief
under Rule 60(b)(6) is appropriate when circumstances are so “unusual or compelling”
that extraordinary relief is warranted or when it “offends justice” to deny such relief.
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996). Courts hav e
granted relief under Rule 60(b)(6) “when, after entry of judgment, events not
contemplated by the moving party render enforcement of the judgment inequitable,”
where a party is indigent, or when it offends justice to deny such relief. Id. at 579; Yapp
v. Excel Corp., 186 F.3d 1222, 1231-32 (10th Cir. 1999).
Plaintiff’s motion for relief from judgment does not, as contemplated in the
Court’s March 29, 2016 order, request that “the Court [ ] revisit its order on defendant’s
motion for summary judgment.” Docket No. 360 at 11 n.5. Instead, plain tiff takes issue
with certain of the Court’s conclusions leading to summary judgment, repeats his
various grievances about the discovery in the case, and concludes by asking the Court
to grant additional discovery and grant plaintiff’s motion for leave to supplement his
complaint. Docket No. 384. The only referenced email attachment is a list of materials
that defense counsel brought to the deposition of Dr. Tiona, which included “several
notebook binders filled w/case related documents.” Docket No. 384 at 35. Defendant
admits that he was served with and had an opportunity to review “less than 5,000
pages” of documents, but argues this amount is inconsistent with copying fees found in
the bill of costs that he claims show approximately 9,000 pages of documents for Dr.
Tiona. Id. at 26-27; see also Docket No. 323 at 10. Two copies of somewhat less than

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5,000 pages would be approximately 9,000 pages, as defendant points out. 1 More to
the point, the email attachment could not have helped plaintiff avoid summary judgment
and he does not otherwise present new evidence that judgment was inequitable. See
Docket No. 360 at 11. Accordingly, the Court would not grant relief even if it had
jurisdiction to do so. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)
(“The filing of a notice of appeal is an event of jurisdictional significance—it confers
jurisdiction on the court of appeals and divests the district court of its control over those
aspects of the case involved in the appeal.”). To the extent plaintiff disputes the
conclusions reached by this Court in entering judgment, his appeal offers the proper
forum.
After judgment is entered, “the filing of an amended complaint is not permissible
until judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b).” Cooper
v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985) (citing 6 C. Wright & A. Miller, Federal
Practice and Procedure § 1489 (1971); Ondis v. Barrows, 538 F.2d 904, 909 (1st Cir.
1976); Wilburn v. Pepsi-Cola Bottling Co. of St. Louis, 492 F.2d 1288, 1290 (8th Cir.
1974); Knox v. First Sec. Bank of Utah, N.A., 206 F.2d 823, 826 (10th Cir. 1953)).
Therefore, the Court would not grant plaintiff’s motion to supplement his complaint or
the related motion for excess pages.
For the foregoing reasons, it is

1

Notably, this is also an amount that would fit in several binders. Defendant
states that duplicate copies were made to provide a copy for plaintiff, the one he admits
to reviewing. Docket No. 397 at 16-17.
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ORDERED that plaintiff’s Motion for Relief from Judgment Pursuant to Fed. R.
Civ. P. Rule 60 [Docket No. 384] is DENIED for lack of jurisdiction. It is further
ORDERED that plaintiff’s Motion for Leave to Exceed Page Limits and to Attach
Exhibits to Plaintiff’s Supplemental Prisoner Complaint [Docket No. 386] is DENIED as
moot. It is further
ORDERED that plaintiff’s Motion for Leave to Supplement Complaint After
Summary Judgment [Docket No. 387] is DENIED as moot.

DATED December 28, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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