Akers v. Shute et al

Filing 75

ORDER ENTERED: Plaintiff's motion to vacate judgments and for fraud upon the court (Doc. 62 ) is denied. Plaintiff's motions for extension of time (Docs. 64 and 66 ) are denied as moot. Plaintiff's motion for order to show caus e and for evidentiary hearing (Doc. 69 ) and motion to take judicial notice of pleadings (Doc. 70 ) are denied. Signed by U.S. Senior District Judge Sam A. Crow on 07/02/20. Mailed to pro se party Montgomery Carl Akers by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MONTGOMERY CARL AKERS,
Plaintiff,
v.

CASE NO. 08-3106-SAC

MICHAEL SHUTE, et al.,
Defendants.

O R D E R
This matter is a civil rights action filed by prisoner in federal
custody. Plaintiff alleged that his Fourth Amendment rights were
violated by searches of his mail conducted during his incarceration
at the United States Penitentiary, Leavenworth. In March 2010, the
Court granted defendants’ motion to dismiss, or in the alternative,
for summary judgment. Plaintiff’s appeal was dismissed in May 2011
due to his failure to pay the filing fee.
The matter is now before the Court on a series of filings by
plaintiff seeking a declaration that the judgment is void due to fraud.
Plaintiff specifically seeks relief under Rule 60(b)(4) and 60(d)(3)
of the Federal Rules of Civil Procedure (Doc. 62).
Rule 60(b) “provides an ‘exception to finality’ that ‘allows a
party to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances.’” United Student Aid
Funds, Inc. v. Espinosa, 559 U.S. 260, 269–70 (2010) (citation
omitted) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528–29 (2005)).
Under Rule 60(b)(4), a court may grant relief from judgment if the
judgment is void. A judgment is void under this provision “only in
the rare instance where [the] 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.” Espinosa,
559 U.S. at 271.
Rule 60(d)(3) states that the power to grant relief from judgment
under Rule 60(b) “does not limit a court's power to: (1) entertain an
independent action to relieve a party from a judgment, order, or
proceeding; ... or (3) set aside a judgment for fraud on the court.”
Fraud on the court includes “only the most egregious misconduct, such
as bribery of a judge or members of a jury, or the fabrication of
evidence by a party in which an attorney is implicated.” United States
v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002) (internal quotation marks
omitted).
Plaintiff’s motion alleges errors in the facts cited by the Court
in its order granting defendants’ dispositive motion. As thoroughly
explained

by

plaintiff’s

the

defendants’

criminal

history

response,
are

the

facts

well-settled

from

concerning
criminal

proceedings against plaintiff in the District of Kansas1, and those
materials were properly noticed by the Court. Likewise, while
plaintiff ascribes malicious intent to both the defendants’ counsel
and this Court, his claims are unsupported. Plaintiff has not
established grounds for relief under Rule 60, and his motion will be
denied.
Plaintiff also moves for an order to show cause and for an
evidentiary hearing (Doc. 69) and for the Court to take notice of
pleadings filed by him in a matter filed in the United States District
Court for the District of Columbia (Doc. 70). The Court has considered
these motions and will deny both. Plaintiff’s requests continue to
1

USA v. Akers, 04-cr-20089-KHV.

seek additional action by the Court in a matter that was resolved
against him more than ten years ago. He has shown no viable ground
for any relief at this point, and his pleadings appear to be both
malicious and lacking in substance.
Finally, the Court advises plaintiff that additional filings in
this matter are not encouraged and may be summarily rejected.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to
vacate judgments and for fraud upon the court (Doc. 62) is denied.
IT IS FURTHER ORDERED plaintiff’s motions for extension of time
(Docs. 64 and 66) are denied as moot.
IT IS FURTHER ORDERED plaintiff’s motion for order to show cause
and for evidentiary hearing (Doc. 69) and motion to take judicial
notice of pleadings (Doc. 70) are denied.
IT IS SO ORDERED.
DATED:

This 2d day of July, 2020, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge