Opiyo v. Strickler et al

Filing 64

ORDER denying 63 plaintiff's Motion for relief from Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FREDERICK O. OPIYO,
Plaintiff,
Case No. 09-13609
HON. GEORGE CARAM STEEH

vs.
DEPUTY H. BOEHM,
DEPUTY J. DARLING, and
DEPUTY WEDGE,

Defendants.
___________________________________/
ORDER DENYING PLAINTIFF’S MOTION
FOR RELIEF FROM JUDGMENT (DOC. 63)
Plaintiff moves the Court, “pursuant to Fed. R. Civ. P. 60(d),” to “set
aside Summary Judgment obtained on fabricated evidence.” (Doc. 63 at
PageID 603). It appears that plaintiff seeks relief from this Court’s
September 16, 2010 “Order Adopting in Part Magistrate Judge’s Report
and Recommendation.” (Doc. 26). The Magistrate Judge’s Report and
Recommendation was filed on July 7, 2010. (Doc. 25).
The Court may relieve a party from a final judgment for fraud,
misrepresentation, or misconduct by an opposing party. Fed. R. Civ. P.
60(b)(3). A motion invoking Rule 60(b)(3) “must be made within a
reasonable time,” specifically, “no more than a year after the entry of the
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judgment or order.” Fed. R. Civ. P. 60(c)(1). Plaintiff’s motion, however,
was filed on June 7, 2017, nearly seven years after the summary judgment
order was issued. Plaintiff attempts to avoid this time limit by moving for
relief pursuant to Rule 60(d), which notes that Rule 60 “does not limit a
court’s power to. . . set aside a judgment for fraud on the court.”
Plaintiff claims that defendant Boehm submitted fabricated evidence
in support of the motion for summary judgment. Boehm relied on an
affidavit of Nicholas Romzek, Jail Lieutenant for Sanilac County, stating
that Sanilac County payroll records indicate that Boehm was not working
on September 5, 2008. Plaintiff appears to complain that the Court relied
on this affidavit, as opposed to relying on some other form of payroll
evidence. Plaintiff’s argument fails. Romzek’s affidavit is sufficient and has
not been impeached by plaintiff.
Plaintiff’s motion for reconsideration, therefore, is untimely and does
not establish fraud on the Court. As such, plaintiff’s motion is DENIED.
IT IS SO ORDERED.
Dated: June 21, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 21, 2017, by electronic and/or ordinary mail and also on
Frederick Opiyo #39194039, FCI Bastrop, P. O. Box 1010
Bastrop, TX 78602.
s/Barbara Radke
Deputy Clerk

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