Opiyo v. Strickler et al

Filing 44

ORDER denying 43 plaintiff's Motion for relief from judgmentand denying 42 Motion to appoint U.S. Marshals to serve subpoena. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FREDERICK O. OPIYO,
CASE NO. 09-CV-13609
HONORABLE GEORGE CARAM STEEH

Plaintiff,
v.
DEPUTY H. BOEHM, DEPUTY J.
DARLING and DEPUTY WEDGE,
Defendants.
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ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF
FROM JUDGMENT (DOC. #43) AND DENYING MOTION TO
APPOINT U.S. MARSHALS TO SERVE SUBPOENA (DOC. #42)
This is a prisoner civil rights case in which plaintiff alleges that he was sexually
assaulted by another inmate as a result of the action or inaction of the defendant officers.
All pretrial matters were referred to Magistrate Judge Binder. On September 16, 2010, the
court adopted Magistrate Judge Binder’s report and recommendation granting defendants’
motion for summary judgment (Doc. #26).

The magistrate judge’s report and

recommendation concluded that plaintiff failed to exhaust his administrative remedies, and,
alternatively, plaintiff’s claims failed on the merits. Plaintiff did not file objections to the
report and recommendation. The court, in adopting the report and recommendation,
stated: “[b]ecause plaintiff’s failure to exhaust his administrative remedies is dispositive of
the case, the court need not rule on the other arguments presented in defendants’ motion
for summary judgment.” (Doc. #26 at 1–2). Plaintiff did not appeal from the court’s
judgment.
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Over two-and-one-half years after defendants’ motion for summary judgment was
granted, in March 2013, plaintiff filed a response to the motion addressing his failure to
exhaust his administrative remedies. Because the case had long been closed, and
because plaintiff did not file timely objections to the report and recommendation, the court
struck plaintiff’s response from the record (Doc. # 35).
Plaintiff then appealed the decision striking his response to the Court of Appeals for
the Sixth Circuit. The Sixth Circuit affirmed the court’s decision, stating in pertinent part:
[T]his case is closed. Opiyo cannot now, almost four years after the motion
for summary judgment was granted, file a new response to that motion.
Therefore, the district court did not abuse its discretion in striking Opiyo’s
second response to the summary judgment motion from the record.
(Doc. #38 at 4). In addition, plaintiff was ordered to pay defendants $500 for filing a
frivolous appeal. (Id.).
Now, almost four-and-one-half years after defendants’ motion fo summary judgment
was granted, plaintiff filed a motion for relief from judgment (Doc. #43), and a motion to
appoint U.S. Marshals to serve a subpoena on the County of Sanilac (Doc. #42). Plaintiff’s
motion for relief from judgment avers that defendants fraudulently concealed and
misrepresented facts affecting the outcome of this action. In the motion, plaintiff briefly
addresses the administrative exhaustion requirement, stating that “Defendants’ inhibiting
conduct rendered any administrative grievances unavailable, and Defendants should have
been estopped from asserting [the] affirmative defense of exhaustion.” (Doc. #43 at 5).
Rule 60(b)(3) of the Federal Rules of Civil Procedure provides that “the court may
relieve a party or its legal representative from a final judgment” based on “fraud (whether

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previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing
party[.]”
Plaintiff’s motion fails for two reasons. First, plaintiff’s motion is untimely. A Rule
60(b)(3) motion must be made within a reasonable time, and no more than one year after
“the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).
As explained above, the court granted defendants’ motion for summary judgment on
September 16, 2010. Plaintiff’s motion is almost three-and-one-half years too late.
Second, to succeed on his motion, plaintiff must establish, by clear and convincing
evidence, that defendants committed fraud. Nagarajan v. Scheick, 8 F. App’x 336, 337 (6th
Cir. 2001) (citation omitted). The basis of the court’s decision granting summary judgment
was that plaintiff did not exhaust his administrative remedies. Plaintiff’s motion does not
claim that defendants committed fraud as it relates to the exhaustion requirement. Indeed,
plaintiff’s argument relating to the exhaustion requirement was available at the time the
court entered judgment.
For these reasons, plaintiff’s motions are DENIED.
IT IS SO ORDERED.
Dated: February 24, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 24, 2015, by electronic and/or ordinary mail and also
on Frederick Opiyo #39194-039, FCI Bastrop, P. O. Box 1010,
Bastrop, TX 78602.
s/Barbara Radke
Deputy Clerk

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