Evans v. Griess et al

Filing 106

ORDER denying 103 Motion of Newly Discovered Evidence and denying as moot 105 Motion in Opposition to Defendant's Motion. Signed by District Judge Terrence W. Boyle on 7/26/2016. Copy sent to pro se plaintiff via US Mail to 717 Court Street, Jacksonville, NC 28540. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-128-BO

GEORGE REYNOLD EVANS,

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Plaintiff,

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V.

ORDER

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OFFICER JASON GRIESS, et al.,

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Defendants.

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This matter is before the Court on pro se plaintiffs motion of newly discovered evidence.
[DE 103]. The appropriate responses and replies (though plaintiffs was in the form of a motion)
have been filed, and the matter is ripe for ruling. For the reasons discussed below, plaintiffs
motion is DENIED.
BACKGROUND
Plaintiff filed his complaint and motion for leave to proceed in forma pauperis on June
17, 2013, seeking compensatory and punitive damages under 42 U.S.C. § 1983 and § 1985 based
on his alleged wrongful arrest and vehicle searches by two Jacksonville, North Carolina police
officers. While the Court was conducting a frivolity review, Mr. Evans filed his first motion for
appointment of counsel. In October 2013, the Court dismissed some ofplaintiffs claims as
frivolous and, finding no exceptional circumstance that would justify appointing counsel, denied
the motion for appointment of counsel. Prior to entry of the scheduling order, Mr. Evans filed
another motion for appointment of counsel and a motion for summary judgment. The Court
denied plaintiffs motions in February 2015. Discovery proceeded, and the parties filed crossmotions for summary judgment. In an order dated October 14, 2015, the Court granted

defendants' motion for summary judgment. Mr. Evans appealed. While his appeal was pending,
plaintiff filed a motion for appointment of counsel in this Court and motion to alter the judgment.
Both were later denied. After giving Mr. Evans notice, the Court of Appeals dismissed the case
for failure to prosecute on December 28, 2015, and the mandate issued the same day. Plaintiff
has since filed two motions which appear to have been in preparation for the instant motion,
which has been filed pursuant to Federal Rule of Civil Procedure 60(b).
The instant motion is based on defendants' testimony at plaintiffs subsequent state
criminal trial, which plaintiff alleges contained discrepancies from information put forth at the
summary judgment phase in the instant case. For example, plaintiff objects to defendants'
testimony which elaborated beyond the same witness's earlier written report or contained mild
discrepancies, such as referring to certain ammunition as "BBs" when plaintiff contends they
were pellets. [DE 103-20, p. 8-9, 13, 15]. The Court includes these by way of illustration, though
they are not plaintiffs only claims. In support of the instant motion, plaintiff submitted an
incomplete trial transcript, as well as several documents, such as defendant affidavits, which
were before the Court at the summary judgment stage, as well as many other documents.
DISCUSSION
Federal Rule of Civil Procedure 60(b) includes several grounds for relief from a final
judgment, order, or proceeding, including, inter alia, (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); and (3) fraud,
misrepresentation, or misconduct by an opposing party. Fed. R. Civ. P. 60(b)(l)-(3).

It is a well settled principle of law that a Rule 60(b) motion seeking relief from a final
judgment is not a substitute for a timely and proper appeal. Therefore, before a party may
seek relief under Rule 60(b ), a party first must show 'timeliness, a meritorious defense, a
lack of unfair prejudice to the opposing party, and exceptional circumstances.'
2

Dowell v. State Farm Fire & Casualty Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993) (internal
citations omitted); see also Williams v. Griffin, 98 Fed. Appx. 947,947 (4th Cir. 2004).
Here, plaintiff did not address these requirements, but, given plaintiffs prose status, the
Court now does. Plaintiffs motion is clearly timely. Fed. R. Civ. P. 60(c); [DE 80]. However,
plaintiff has not demonstrated that he has a meritorious defense or exceptional circumstances.
The Court does not need address, then, whether plaintiff has demonstrated a lack of unfair
prejudice to the opposing party.
Defendants prevailed at the summary judgment stage on a theory of qualified immunity.
As the Court noted at the time, qualified immunity shields government officials from liability so
long as they could reasonably believe that their conduct does not violate clearly established law.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v. Purnell, 652 F.3d 524,531
(4th Cir. 2011) (en bane). It protects "all but the plainly incompetent or those who knowingly
violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Reichle v. Howards, 132
S. Ct. 2088, 2093 (2012). Here, plaintiffhas not included any information to call into question
the Court's earlier finding that defendants were entitled to qualified immunity, so he has not
demonstrated that he has a meritorious defense.
Moreover, even if plaintiff were to have a meritorious defense, he has not claimed or
otherwise demonstrated that his case presents exceptional circumstances. For these reasons,
plaintiff does not pass the Rule 60(b) threshold requirements, and the motion must fail.
Nevertheless, recognizing plaintiffs prose status, the Court considers plaintiffs claims
on their merits. Plaintiff first seeks relief pursuant to Rule 60(b )( 1) for "mistake, inadvertence,
surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(l). Plaintiff does not explicitly allege
which of these he is currently claiming or who he claims the wrongful actor was. Without this
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information, despite having read plaintiffs motion, the Court cannot find that plaintiff has
demonstrated mistake, inadvertence, surprise or excusable neglect so as to warrant relief.
Plaintiff next seeks relief pursuant to Rule 60(b )(2) for newly discovered evidence. New
evidence must be '"facts in existence at the time of trial of which the aggrieved party was
excusably ignorant"' and the moving party is entitled to relief "only if such evidence: (1) is
material and not merely cumulative, (2) could not have been timely discovered through the
exercise of due diligence, and (3) would probably have changed the outcome embodied in the
judgment." Gardner v. Dixon, 1992 U.S. App. LEXIS 28147, *17 (4th Cir. Oct. 21, 1992). Here,
plaintiff claims that defendants' allegedly contradictory testimony in his criminal trial constitutes
new evidence. Looking beyond the fact that these alleged inconsistencies were not in existence at
the time of trial, the Court remains unpersuaded that they are material or would probably have
changed the outcome at the summary judgment stage. Accordingly, plaintiff does not merit relief
for new evidence.
Finally, plaintiff seeks relief pursuant to Rule 60(b)(3) for fraud, misrepresentation, or
misconduct by an opposing party. "A party seeking relief under subsection (3) ofthe rule must
also prove the misconduct complained of by clear and convincing evidence and demonstrate that
such misconduct prevented him from fully and fairly presenting his claim or defense." Square

Constr. Co. v. Wash. Metro. Area Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981). Once again, the
Court finds that plaintiff has fallen short ofthe statute's requirements. The Court is not
persuaded any additional elaboration or slight differences in affidavit and trial testimony
prevented plaintiff from presenting his case for summary judgment and opposing defendants'
motion for summary judgment or that, even if it did, plaintiff has satisfied the burden of clear

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and convincing evidence. Accordingly, plaintiff does not merit relief for
fraud/misrepresentation/misconduct.
CONCLUSION
For the reasons discussed above, plaintiffs motion of newly discovered evidence is
DENIED. [DE 103]. Accordingly, plaintiffs response motion in opposition is DENIED AS
MOOT. [DE 105].

SO ORDERED, this 1-kday of July, 2016.

~L~

UNITED STATES DISTRICT JUDGE

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