Wheatt et al v. City of East Cleveland et al

Filing 412

Order signed by Judge James S. Gwin on 1/27/2020. The Court denies Defendants' motion to set aside judgment and Plaintiffs' request for sanctions, for the reasons as set forth in this order. 409 410 (S,KM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------------------DERRICK WHEATT, et al.,
:
:
Plaintiffs,
:
:
vs.
:
:
CITY OF EAST CLEVELAND, et al.,
:
:
Defendants.
:
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CASE NOS. 1:17-cv-377 &
1:17-cv-611 (consolidated)
OPINION & ORDER
[Resolving Doc. 409]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On November 15, 2018, Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene
Johnson won a jury verdict in this civil rights case against Defendants Vincent Johnstone
and Michael Perry. 1
On January 3, 2020, Defendants filed their fourth motion to set aside the judgment. 2
This time, Defendants claim the judgment should be set aside “due to fraud upon the
Court.” 3 Defendants say Plaintiff Johnson’s mother may have offered to pay an
investigator, James Avery, to improperly influence a key witness, Tamika Harris. 4
Plaintiffs oppose, saying that “Defendants’ two-page motion fails to cite any legal
authority or attach any evidence.” 5 Plaintiffs request sanctions against the defense attorney
for her vexatious litigation tactics. 6
For the following reasons, the Court DENIES Defendants’ motion to set aside the
judgment and DENIES Plaintiffs’ request for sanctions.
1

Doc. 349. On October 22, 2019, the Court substituted Karen Perry, as Executor of Michael Perry’s Estate,
as the Defendant in place of Michael Perry. Doc. 404.
2
Doc. 409.
3
Id. at 1. Defendants also request a hearing on this matter. Id.
4
Id. at 2.
5
Doc. 410 at 1.
6

Id.

Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
I.

Background

In January 1996, an Ohio jury convicted Plaintiffs of murder. At the state court
murder trial, the prosecution used testimony from then-fourteen-year-old Tamika Harris to
inculpate Plaintiffs.
In 2004, nine years after the murder, Tamika Harris recanted her testimony. Harris
said that she never clearly saw the shooter and that Defendant Perry, an East Cleveland
police officer, pressured Harris to identify Johnson as the culprit.
Armed with Harris’s recantation, as well as other evidence, Plaintiffs successfully
challenged their convictions. In March 2015, an Ohio court granted their motion for a
new trial, and the new trial order was affirmed on appeal. In August 2016, the state trial
court dismissed the criminal case against Plaintiffs.
On February 23, 2017, Plaintiffs brought the instant civil rights case under 42
U.S.C. § 1983. At the civil jury trial, the Court admitted Tamika Harris’s videotaped
deposition in which she explained why she recanted. In the deposition, defense counsel
cross-examined Harris about her inconsistent accounts.
On November 15, 2018, Plaintiffs won a jury verdict.
On January 3, 2020, Defendants moved to set aside the judgment for fraud on the
Court. 7 With the motion, Defendants allege that:
[O]n or about December 19, 2019, James Avery, a purported investigator for
Rosemary Johnson, mother of Plaintiff Eugene Johnson, appeared in the East
Cleveland Law Offices and complained that he had not been paid the $25,000
he had been promised to effectuate the recantation of key Plaintiff Witness
Tameka [sic] Harris. 8

7
8

Doc. 409.
Id. at 3.

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Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.

In lieu of presenting evidence in support of the motion, Defendants requested a hearing on
the matter. 9
On January 16, 2020, Plaintiffs opposed the motion. 10 Plaintiffs presented
Rosemary Johnson’s sworn statements in which she flatly denied Plaintiffs’ unsupported
allegation. 11
On January 18, 2020, Defendants replied, belatedly presenting some evidence: (1)
an unsworn, East Cleveland Law Department memorandum describing James Avery’s
alleged statements and (2) a written transcript of an alleged 1998 interview of Tamika
Harris by James Avery. 12
II.

Discussion

A. Defendants Fail to Meet Their Burden Under Rule 60(d)(3).
Rule 60(d)(3) authorizes the court to “set aside a judgment for fraud on the court.”
The fraud on the court envisioned by this rule is egregious conduct involving a corruption
of the judicial process itself. 13 A movant seeking to establish fraud sufficient to warrant
relief under Rule 60(d) must present clear and convincing evidence of
(1) [conduct] on the part of an officer of the court; that (2) is directed to the
judicial machinery itself; (3) is intentionally false, willfully blind to the truth,
or is in reckless disregard of the truth; (4) is a positive averment or a
concealment when one is under a duty to disclose; and (5) deceives the
court. 14

9

Id.

10

Doc. 410.
Doc. 410-1; Doc. 410-2.
12
Doc. 411.
11

13
14

Gen. Medicine, P.C. v. Horizon/CMS Health Care Corp., 475 F. App’x 65, 71 (6th Cir. 2012).
Johnson v. Bell, 605 F.3d 333, 339 (6th Cir. 2010).

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Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
Here, Defendants utterly fail to meet their burden. As an initial matter, Defendants
have not presented clear and convincing evidence that satisfies any element. They
attached no evidence at all to their original motion. 15 In their reply, Defendants belatedly
attach an unsworn memorandum and a 1998 transcript. 16 Defendants fail to explain the
significance of the 1998 transcript, and the unsworn memorandum purporting to describe
Avery’s allegations is far from sufficient to disturb a final judgment—especially in the face
of sworn allegations stating the opposite.
But even if the Court were to accept Defendants’ scant evidence as true, Defendants
cannot meet the first element—that the fraudulent conduct was undertaken by an officer of

the court. 17 Plaintiff Johnson’s mother is not an officer of the court. And Defendants offer
no evidence that Plaintiffs’ attorneys were aware of her alleged efforts. Thus, even if
Rosemary Johnson had offered to pay James Avery in the manner alleged, this would not
rise to the level of fraud upon the court.
Moreover, Defendants could not meet the second element—that the alleged
conduct was directed to the judicial machinery itself. 18 “Fraud upon the court is typically
limited to egregious events such as bribery of a judge or juror or improper influence
exerted on the court, affecting the integrity of the court and its ability to function
impartially.” 19 “[The] alleged perjury of a witness is not a ground for [fraud upon the

15

Plaintiffs request a hearing, but this is not contemplated by Rule 60(d).
Doc. 411-1; Doc. 411-2.
17
See Johnson, 245 F.3d at 339.
18
See Johnson, 245 F.3d at 339; Bulloch v. United States, 721 F.2d 713, 718 (10th Cir. 1983) (“Fraud upon
the court . . . is fraud which is directed to the judicial machinery itself and is not fraud between the parties
. . . false statements or perjury.”).
19
Apotex Corp. v. Merck & Co., 507 F.3d 1357, 1361 (Fed. Cir. 2007) (citation omitted).
16

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Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
court].” 20 Accordingly, even if Avery Johnson had tried to improperly influence Tamika
Harris’s testimony, this would not rise to the level of fraud upon the court.
In sum, Defendants fail to meet their burden, and the Court denies their motion to
set aside the judgment.
B. The Court Imposes Sanctions on the Defense Attorney for Vexatious Litigation
Tactics.
In their opposition, Plaintiffs request 28 U.S.C. § 1927 sanctions against defense
counsel. Plaintiffs point out that Defendants’ Rule 60(d) motion is “unsupported by any
facts or the law” and is part of a pattern of frivolous motions. 21
Section 1927 provides that any attorney “who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 22
Section 1927 sanctions do not require that an attorney act in “bad faith” or with “conscious
impropriety,” but a court should inquire whether “an attorney knows or reasonably should
know that a claim pursued is frivolous, or that his or her litigation tactics will needlessly
obstruct the litigation of nonfrivolous claims.” 23 The sanction requires “a showing of
something less than subjective bad faith, but something more than negligence or
incompetence.” 24
The Court does not grant Plaintiffs’ request at this time.

20
21

Rodriguez v. Honigman Miller Schwartz & Cohn LLP, 465 F. App’x 504, 510 (6th Cir. 2012).

Doc. 410 at 6-7.
22
28 U.S.C. § 1927.

Hall v. Liberty Life Assurance Co. of Boston, 595 F.3d 270, 275-76 (6th Cir. 2010) (citing Rentz v. Dynasty
Apparel Indus., 556 F.3d 389, 396 (6th Cir. 2009)).
24
Id.
23

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Case Nos. 1:17-cv-377 & 1:17-cv-611
Gwin, J.
To be sure, Plaintiffs have shown that Defense counsel unreasonably and
vexatiously multiplied the proceedings in this case when she filed a Rule 60(d) motion with
almost no citations to law or fact. And this is far from the first time she has done so.
The Court need not look far into the past for an example. On October 22, 2019,
the Court granted Plaintiffs’ motion to substitute Karen Perry, as Executor of Michael Perry’s
Estate, in place of Michael Perry. 25 Later that same day, Defendants moved the Court to
reconsider the order, cursorily repeating its previously asserted arguments. 26 On
December 19, 2019, the Court denied the motion for reconsideration and warned the
Parties to avoid further frivolous motions. 27
Defense counsel failed to heed that warning. Fifteen days later, she filed this
frivolous Rule 60(d) motion. This order will act as notice that the Court will sanction any
further frivolous motions.
III.

CONCLUSION

For the foregoing reasons, the Court DENIES Defendants’ motion to set aside the
judgment and DENIES Plaintiffs’ request for § 1927 sanctions.

IT IS SO ORDERED

s/

Dated: January 27, 2020

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

25

Doc 404.
Doc. 405.
27
Doc. 408.

James S. Gwin

26

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