Holland v. Gary The City of et al

Filing 406

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Court hereby DENIES the 381 Motion to Vacate Final Judgment, the 386 Request for Sanctions Against Defendants for Their Obdurate Behavior During the Litigation, the 387 Notice to Judge DeGuilio, and the 389 Verified Motion for Sanctions, Attorney's Fees, Costs and Expenses Due to the Defendants' Obdurate Behavior in Litigation, and DENIES as moot the 390 Verified Request for Final Judgment on the Merits. Signed by Magistrate Judge Paul R Cherry on 3/8/2017. (Copy mailed to pro se party)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT HOLLAND,
Plaintiff,

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v.
THE CITY OF GARY, et al.,
Defendants.

CAUSE NO.: 2:10-CV-454 PRC

OPINION AND ORDER
This matter is before the Court on a Motion to Vacate Final Judgment [DE 381], filed by
Plaintiff Robert Holland on April 26, 2016, a Request for Sanctions Against Defendants for Their
Obdurate Behavior During the Litigation [DE 386], filed by Plaintiff on May 19, 2016, a Notice to
Judge DeGuilio [DE 387], filed by Plaintiff on May 20, 2016, a Verified Motion for Sanctions,
Attorney’s Fees, Costs and Expenses Due to the Defendants’ Obdurate Behavior in Litigation [DE
389] filed by Plaintiff on May 31, 2016, and a Verified Request for Final Judgment on the Merits
[DE 390], filed by Plaintiff on May 31, 2016.
PROCEDURAL HISTORY
Plaintiff, proceeding in this matter pro se, filed his Complaint in this Court on November 15,
2010. The Complaint includes two counts of police misconduct alleged against seven defendants,
including municipal entities and officers in their official capacities. The Court will refer to the City
of Gary, then-Mayor Rudy Clay, City of Gary Chief of Police, Johnny Gill, and Officer Tremell
Williams as the “Gary Defendants” and to the Lake County Board of Commissioners, then-Lake
County Sheriff Roy Dominguez, and the Lake County Jail Warden as the “Lake County Defendants.”
On December 27, 2011, the Court entered an Order granting in part a Motion for Summary
Judgment filed by the Gary Defendants, leaving only two claims pending against the Gary

Defendants: abuse of process and intentional infliction of emotional distress. On December 6, 2012,
the Court entered an Order granting a second Motion for Summary Judgment filed by the Gary
Defendants, leaving the Lake County Defendants as the only remaining defendants in the case.
On January 8, 2013, the Court granted two Motions for Summary Judgment filed by the Lake
County Defendants, and denied Plaintiff’s Motion for Summary Judgment.
On January 7, 2013, Plaintiff filed a Motion to Correct Errors and to Set Aside the Orders
of December 27, 2011 and December 6, 2012, requesting reconsideration of the Court’s Orders
granting summary judgment to the Gary Defendants, and on February 4, 2013, Plaintiff filed a
Motion to Correct Errors and to Set Aside the Orders of December 27, 2011, December 6, 2012 and
January 8, 2013.
On February 6, 2013, Plaintiff filed a Notice of Appeal indicating that he was appealing this
Court’s grants of Defendants’ Motions for Summary Judgment to the Seventh Circuit Court of
Appeals. On March 5, 2013, the Court issued an Opinion and Order denying Plaintiff’s requests for
reconsideration. Plaintiff then asked the Court to reconsider its decision not to reconsider its grant
of summary judgment, which this Court denied on April 23, 2013.
The Seventh Circuit Court of Appeals affirmed this Court’s grant of summary judgment on
October 2, 2013. Not to be deterred, Plaintiff then filed a Motion to Set Aside on October 29, 2013,
seeking relief under Federal Rule of Civil Procedure 60. The Court denied that motion on April 24,
2014.
On May 5, 2014, Plaintiff filed a Motion for De Novo Review of the case by an Article III
Judge, in which Plaintiff argued that there had not been consent to magistrate judge jurisdiction by
all parties in this case. The Court denied that motion on June 6, 2014.
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On April 26, 2016, Plaintiff filed the instant Motion to Vacate the Final Judgment [DE 381].
The Lake County Defendants and Gary Defendants filed responses [DE 384 and 385, respectively]
on May 12, 2016. Plaintiff did not file a reply, and the time in which to do so has passed.
On May 19, 2016, Plaintiff filed a Motion for Sanctions [DE 386], and on May 31, 2016,
Plaintiff filed a Verified Motion for Sanctions [DE 389]. The Gary Defendants filed a response [DE
392] to the Motion for Sanctions on June 1, 2016, and a response [DE 400] to the Verified Motion
for Sanctions on June 10, 2016. The Lake County Defendants filed a response [DE 394] to the
Motion for Sanctions on June 3, 2016, and a response [DE 399] to the Verified Motion for Sanctions
on June 9, 2016. Plaintiff filed a reply [DE 396] to the Motion for Sanctions on June 8, 2016, and
he did not file a reply to the Verified Motion for Sanctions, and his deadline to do so expired.
On May 20, 2016, Plaintiff filed a document titled “Notice to Judge DeGuilio” [DE 387]. The
Gary Defendants filed a response on June 2, 2016 [DE 393], and the Lake County Defendants filed
a response on June 3, 2016 [DE 395]. Plaintiff filed a reply [DE 397] on June 8, 2016.
On May 31, 2016, Plaintiff filed the instant Verified Request for Final Judgment on the
Merits [DE 390]. The Lake County Defendants filed a response [DE 398] on June 8, 2016, and the
Gary Defendants filed a response [DE 401] on June 13, 2016. Plaintiff did not file a reply before the
deadline.
The parties orally agreed on the record to have this case assigned to a United States
Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this
case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

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MOTION TO VACATE THE JUDGMENT
In the introduction to the Motion to Vacate the Judgment, Plaintiff indicates that he is filing
the motion pursuant to Federal Rule of Civil Procedure 60(b)(4), (b)(5), (b)(6), (d)(1), and (d)(3).
In the section on standards of review, Plaintiff also mentions subsections (b)(1) and (b)(3) of Rule
60. As will be discussed below, Plaintiff is not entitled to relief under any of these subsections of
Rule 60.
A. Legal Standards
Because relief under subsections (b)(1), (b)(3), and (d)(1) is unavailable without any need
for analysis of Plaintiff’s arguments, the Court will explain those subsections first before explaining
the legal standard for the other subsections.
There is a one-year time limit to bring motions under subsections (b)(1) and (b)(3). Fed R.
Civ. P. 60(c)(1). The instant motion was filed on April 26, 2016, more than one year after the
judgments and orders challenged in the motion. Therefore, to the extent the motion is brought under
Rule 60(b)(1) or (b)(3), the motion is denied as untimely.
Rule 60(d)(1) provides that Rule 60 does not limit a court’s power to entertain an
independent action to relieve a party from a judgment, order, or proceeding. Plaintiff has not filed
an independent action. Instead, he has filed a motion in this terminated case. Therefore, Rule
60(d)(1) has no bearing on this motion. See Best v. U.S., Nos. 2:00-CR-171, 2:08-CR-59, 2010 WL
3782160, at *2 (N.D. Ind. Sept. 22, 2010) (“Best has not filed an ‘independent action,’ but rather has
filed a motion in this terminated section 2255 matter. Thus, he has not properly invoked Rule
60(d)(1).”). To the extent the motion is brought under Rule 60(d)(1), the motion is improper and no
relief is granted.
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The Court now turns to the remaining subsections: 60(b)(4), (b)(5), (b)(6), and (d)(3).
Under Rule 60(b), “[i]nstead of trying to relitigate the merits . . . , a litigant has to come up
with something different—perhaps something overlooked before, perhaps something new.” Bell v.
McAdory, 820 F.3d 880, 883 (7th Cir. 2016) (emphasis in original) (citing Gonzalez v. Crosby, 545
U.S. 524, 536-38 (2005), Ackermann v. United States, 340 U.S. 193 (1950)).
Under Rule 60(b)(4), a party is entitled to relief from judgment if the judgment was void.
“[A] void judgment is one so affected by a fundamental infirmity that the infirmity may be raised
even after the judgment becomes final,” and is uncommon. United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 270 (2010). “Rule 60(b)(4) applies only in the rare instance where a
judgment is premised either on a certain type of jurisdictional error or on a violation of due process
that deprives a party of notice or the opportunity to be heard.” Id. at 271.
Rule 60(b)(5) provides for setting aside a judgment where “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.” Fed. R. Civ. P. 60(b)(5). “Rule 60(b)(5) may not
be used to challenge the legal conclusions on which a prior judgment or order rests . . . . The party
seeking relief bears the burden of establishing that changed circumstances warrant relief.” Horne v.
Flores, 557 U.S. 433, 447 (2009).
Rule 60(b)(6) permits relief for “any other reason that justifies [it].” Fed. R. Civ. P. 60(b)(6).
Relief under Rule 60(b)(6) “requires a showing of ‘extraordinary circumstances.’” Gonzalez, 545
U.S. at 536 (see also Nelson v. Napolitano, 657 F.3d 586, 589 (7th Cir. 2011) (“Relief under Rule
60(b) is an extraordinary remedy granted only in exceptional circumstances.”). “[L]egal error is not
a proper ground for relief under Rule 60(b). That rule is designed to allow modification in light of
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factual information that comes to light only after the judgment, and could not have been learned
earlier.” Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002).
Finally, Federal Rule of Civil Procedure 60(d)(3) clarifies that Rule 60 does not limit a
court’s power to set aside a judgment for fraud on the court. Fraud on the court is often defined as
actions that “defile the court.” In re Golf 255, Inc., 652 F.3d 806, 809 (7th Cir. 2011) (collecting
cases). Because there is no deadline for filing a motion to set aside judgment for fraud on the court,
fraud on the court must be defined narrowly in order to avoid opening up civil judgments to
perpetual collateral attacks. Id. (quoting Oxxford Clothes XX, Inc. v. Expeditors Int’l of Washington,
Inc., 127 F.3d 574, 578 (7th Cir. 1997); citing Drobny v. Comm’r of Internal Revenue, 113 F.3d 670,
678 (7th Cir. 1997)). “Precisely because there is no deadline for asserting fraud on the court, such
a motion must allege the kind of fraud that ordinarily couldn’t be discovered, despite diligent inquiry,
within a year, such as in cases where there are no grounds for suspicion and the fraud comes to light
serendipitously.” Ventre v. Datronic Rental Corp., 482 F. App’x 165, 169 (7th Cir. 2012) (internal
quotation marks omitted) (quoting In re Golf 255, Inc., 652 F.3d at 809). The party seeking to set
aside a judgment for fraud on the court must prove fraud by clear and convincing evidence. Wickens
v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010) (citing Ty Inc. v. Softbelly’s, Inc., 517 F.3d 494,
498 (7th Cir. 2008)).
B. Analysis
Plaintiff presents many arguments in his Motion to Vacate. However, as the Court will
describe below, none of the arguments are successful.
Plaintiff, not for the first time, argues that the undersigned lacks jurisdiction to enter final
judgment in this case. This argument is premised on the theory that the Gary Chief of Police failed
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to appear. The Court addressed this same argument in an Opinion and Order dated June 6, 2014 [DE
374]. For the reasons stated in that Opinion and Order, the Gary Chief of Police did appear, and the
undersigned has jurisdiction to enter final judgment in this case. The request to vacate the judgment
on this basis is denied.
Next, Plaintiff contends that there was a complete lack of due process in this case. “Rule
60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of
jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity
to be heard.” United Student Aid Funds, Inc., 559 U.S. at 271 (emphasis added). Despite Plaintiff’s
assertions that there was a lack of due process, the record of this case’s litigation shows prolific filing
by Plaintiff. He, as the initiator of this litigation, had notice of it, and any argument that he did not
have an opportunity to be heard is contradicted by the case record, lacks a clear statement of any due
process issues in the instant litigation, and is without merit.
Plaintiff also asserts that the judgment must be set aside due to fraud on the court. In order
for a judgment to be set aside as allowed by Rule 60(d)(3), fraud on the court must be shown by clear
and convincing evidence. Plaintiff has presented no specific evidence in support of his assertions of
fraud on the court, only unsupported argument and broad references to documents he filed in the
instant litigation and in a separate cause of action (Northern District of Indiana Cause No. 2:15-CV207). The fraud on the court argument is unsuccessful.
Next, Plaintiff makes several arguments for relief based on the merits of the underlying
summary judgment ruling, For example, Plaintiff contends that there was an unreasonable delay in
processing Plaintiff as an inmate, that Defendants arrested Plaintiff without probable cause, and that
one of the motions for summary judgment was procedurally improper because it was filed before the
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close of discovery. These arguments are not appropriate under Rule 60. “[D]isagreement with the
merits of the underlying judgment simply is not a reason for relief under Rule 60(b).” Bell, 820 F.3d
at 883 (citing Banks v. Chicago Bd. of Educ., 750 F.3d 663, 668 (7th Cir.2014); Bell v. Eastman
Kodak Co., 214 F.3d 798, 800 (7th Cir.2000);Cash v. Illinois Division of Mental Health, 209 F.3d
695, 698 (7th Cir.2000); Parke–Chapley Construction Co. v. Cherrington, 865 F.2d 907 (7th
Cir.1989)). Further, these arguments do not implicate Rule 60(d)(3) and the ability of the Court to
set aside a judgment for fraud on the court. These arguments to not provide a reason for the Court
to set aside the judgment.
Finally, Plaintiff argues that Judge DeGuilio should have recused himself from this case.
Without addressing the merits of this argument, the Court finds this argument irrelevant, as Judge
DeGuilio did not issue any of the orders that Plaintiff seeks to have set aside.
Plaintiff is not entitled to relief under any of the subsections of Rule 60 that he invokes.
Therefore, the Motion to Vacate the Final Judgment is denied.
NOTICE TO JUDGE DEGUILIO
Though the Notice is directed to Judge DeGuilio, this case has been reassigned, by consent
of the parties, to the jurisdiction of the undersigned. Judge DeGuilio is no longer assigned to this
case, so the Notice is before the undersigned for disposition. Plaintiff states that he brings this Notice
pursuant to Federal Rule of Civil Procedure 60(b)(4), (b)(5), (b)(6), and (d), but the only relief
requested in the Notice is an oral hearing. This request is denied because the Court is able to resolve
all of the pending motions on the written briefs. Further, the thrust of Plaintiff’s statements in the
Notice is that Plaintiff wishes to relitigate the merits of the summary judgment motions that resulted
in judgment being entered in favor of all Defendants. As stated above, Rule 60(b) provides no relief
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on the basis of a party’s disagreement with the merits of a judgment. Relief under Rule 60(d) is also
inappropriate because Plaintiff, in the Notice, is not seeking to bring an independent action, arguing
that he was not personally notified of this action, or alleging fraud on the court. See Fed. R. Civ. P.
60(d). Therefore, all relief requested directly or by inference in the Notice to Judge DeGuilio is
denied.
REQUEST FOR FINAL JUDGMENT ON THE MERITS
Plaintiff requests that final judgment be entered in this litigation. Because judgment has
already been entered and has not been vacated, this request is denied as moot. Further, this motion
is yet another attempt to relitigate the merits of the lawsuit, which has been decided both in this
Court and on appeal, and Plaintiff provides no meritorious reason, such as a change in the law or
extraordinary circumstances, for the Court to disturb the judgment.
MOTIONS FOR SANCTIONS
There are two pending motions for sanctions that were filed by Plaintiff. Plaintiff’s arguments
for an award of sanctions in his favor are the same in both motions, and in the second motion,
Plaintiff indicates that he is seeking sanctions under both Rule 11 and Rule 37 of the Federal Rules
of Civil Procedure. Plaintiff states that sanctions are appropriate because (1) the Gary Defendants
filed a motion for summary judgment before the close of discovery, and (2) Defendants submitted
false statements or documents and withheld exculpatory evidence in the course of litigating this
matter.
Regarding the first issue, the Seventh Circuit Court of Appeals directly addressed this on
Plaintiff’s appeal. “[I]f Holland needed further discovery, he should have moved under Federal Rule
of Civil Procedure 56(d) (formerly Rule 56(f)), explaining why he could not yet present facts
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essential to his opposition.” Holland v. City of Gary, 533 F. App’x 661, 662 (7th Cir. 2013). Plaintiff
did not avail himself of Rule 56(d)’s provisions, and this argument provides no basis upon which
to grant the Motions for Sanctions.
Next, Plaintiff makes several unsupported assertions about false statements and documents
in the record and documents withheld in discovery. As the party seeking sanctions, Plaintiff bears
the burden to show that sanctions are appropriate under Rule 11. Signature Retail Servs., Inc. v.
Darnell, No. 12 C 7657, 2013 WL 1767716, at *2 (N.D. Ill. Apr. 24, 2013) (citing Packaging
Supplies, Inc. v. Harley-Davidson, Inc., No. 08C400, 2011 WL 5373975, at *6 (N.D. Ill. 2011)
(referencing the “‘high burden of showing that Rule 11 sanctions are warranted’”) (quoting Lundeen
v. Minemyer, No. 09 C 3820, 2010 WL 5418896, at *3 (N.D. Ill. 2010))). Under Rule 37, sanctions
are available when a discovery order is disobeyed.
Plaintiff’s assertions of false statements and documents in the record are not supported by
evidence or even by statements specifically identifying the portions of the documents or individual
statements that Plaintiff contends are false. Though Plaintiff refers to this Court’s April 16, 2012
Opinion and Order [DE 263], Plaintiff has not identified how he believes that Opinion and Order to
have been disobeyed.
The Court finds no basis upon which to award sanctions in favor of Plaintiff against
Defendants. Therefore, the Motions for Sanctions are denied.
REQUEST FOR PRE-FILING ORDER
In their responses to the Motion to Vacate, Notice to Judge DeGuilio, Motion for Final
Judgment on the Merits, and one of the Motions for Sanctions, the Lake County Defendants ask the
Court to issue a pre-filing order against Plaintiff.
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The Court has cautioned Plaintiff multiple times against filing frivolous motions and
documents in this litigation. (See Apr. 24, 2014 Op. & Order, at 4, ECF No. 364; Mar. 29, 2012 Op.
& Order, at 5-6, ECF No. 259; Oct. 27, 2011 Op. & Order, at 6, ECF No. 186; Aug. 18, 2011 Op..
& Order, at 5, ECF No. 134; July 29, 2011 Op. & Order, at 6, ECF No. 120). Despite these warnings,
Plaintiff continues to file frivolous motions in an attempt to relitigate settled matters.
On January 5, 2017, while the instant motions were pending, the Seventh Circuit Court of
Appeals issued sanctions against Plaintiff. First, Plaintiff was fined $500. Second, the Court of
Appeals ordered that, unless and until Plaintiff pays all outstanding filing fees and fines, the clerks
of all federal courts in the Seventh Circuit are directed to return unfiled any papers submitted either
directly or indirectly by Plaintiff or on his behalf. Holland v. Lake Cty. Mun. Gov’t, No. 16-2962 (7th
Cir. Jan. 5. 2017). Because the relief requested is already in place, the request for a pre-filing order
against Plaintiff is denied as moot.
CONCLUSION
Based on the foregoing, the Court hereby DENIES the Motion to Vacate Final Judgment [DE
381], the Request for Sanctions Against Defendants for Their Obdurate Behavior During the
Litigation [DE 386], the Notice to Judge DeGuilio [DE 387], and the Verified Motion for Sanctions,
Attorney’s Fees, Costs and Expenses Due to the Defendants’ Obdurate Behavior in Litigation [DE
389] and DENIES as moot the Verified Request for Final Judgment on the Merits [DE 390] and the
Lake County Defendants’ request for a pre-filing order.
SO ORDERED this 8th day of March, 2017.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

Plaintiff, pro se
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