Belser et al v. Evans et al

Filing 26

ORDER denying 24 Motion to Submit Newly Discovery Evidence as Exhibits. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARVIN BELSER, SR.,
Case Number: 2:16-cv-12792
HON. VICTORIA A. ROBERTS

Plaintiff,
v.
VONDA EVANS, ET AL.,
Defendants.
/

ORDER DENYING PLAINTIFF’S MOTION TO SUBMIT NEWLY
DISCOVERED AND COMPELLING EVIDENCE AS EXHIBITS
Plaintiff Marvin Belser, Sr., filed a pro se complaint on behalf of himself and his
children under 42 U.S.C. § 1983, against two defendants, Wayne County Circuit Court
Judges Vonda Evans and Sheila Ann Gibson Manning. He challenged the Defendants’
decisions related to a child protective services case and his criminal trial and claimed that
their actions violated Michigan’s Public Health Code. The Court dismissed Plaintiff’s
children without prejudice because they did not sign the complaint and there was no
indication that they were even aware that the complaint had been filed. The Court dismissed
the complaint under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief
may be granted. The Court also certified that any appeal would not be taken in good faith.
Plaintiff then sought leave to proceed in forma pauperis on appeal in the Sixth Court of
Appeals. The Sixth Circuit held that Plaintiff’s appeal lacked an arguable basis in law and
denied him leave to proceed in forma pauperis on appeal. See Belser v. Evans, et al., No. 16-

2622 (6th Cir. March 20, 2017) (ECF No. 22). Now before the Court is Plaintiff’s Motion
to Submit Newly Discovered and Compelling Evidence as Exhibits.
Plaintiff seeks to submit evidence supporting his argument that his state court
convictions violated the Double Jeopardy Clause. The Court construes the motion as a
motion for relief from judgment based upon newly discovered evidence under Rule 60(b)(2)
of the Federal Rules of Civil Procedure. The Court may relieve a party or its legal
representative from a final judgment, order, or proceeding on the grounds of newly
discovered evidence that, with reasonable diligence could not have been discovered in time
to move for a new trial under Rule 59(b). Fed.R.Civ.P. 60(b)(2). To prevail on a Rule
60(b)(2) motion, the movant must demonstrate that: 1) he exercised due diligence in
obtaining the information; and 2) the evidence is material and clearly would have produced
a different result if presented before the original judgment. McFall v. Patton, 238 F.3d 422
(6th Cir. 2000), citing Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir.1998). A motion
under Rule 60(b)(2) must be made within a reasonable time no more than a year after the
entry of judgment or order or the date of the proceeding. Fed. R. Civ. P 60(c)(1).
Plaintiff motion is timely, but he does not present any new evidence justifying relief
under Rule 60(b)(2). Plaintiff attaches to his motion two letters to the state court judge who
presided over his preliminary examination, a letter to one of the defendants in this
proceeding, copies of state court criminal docket sheets, and a letter from Chief Judge Nancy
Blount, 36th District Court, transmitting the state court docket sheets. These documents are
irrelevant to the Court’s dismissal of Plaintiff’s civil rights complaint on the basis of judicial
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immunity. To the extent that Plaintiff seeks to assert a new claim that his right to be free
from double jeopardy was violated, such a claim is not properly filed under 42 U.S.C. §
1983. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (When a prisoner challenges “the
very fact or duration of his physical imprisonment, ... his sole federal remedy is a writ of
habeas corpus.”).
Accordingly, the Court DENIES Plaintiff’s Motion to Submit Newly Discovered and
Compelling Evidence as Exhibits (ECF No. 24).
SO ORDERED.

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: April 17, 2017

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