Gambino v. Pugh et al

Filing 19

Memorandum Opinion: For the reasons set forth herein, plaintiff's motion to reinstate and reopen the October 1, 2013, order dismissing the complaint pursuant to Fed. R. Civ. P. 60(b)(1)(2)(3), (6) is denied. (Doc. No. 18 .) Further, the Court certifies that an appeal from this decision could not be taken in good faith. 28 U.S.C. Section 1951(a)(3). Judge Sara Lioi on 9/25/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID A. GAMBINO

PLAINTIFF,
vs.
MICHAEL PUGH, et al.,

DEFENDANTS.

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CASE NO. 4:13-cv-817

JUDGE SARA LIOI
MEMORANDUM OPINION

This matter is before the Court on motion by pro se plaintiff David A. Gambino seeking
relief from a final judgment pursuant to Federal Rule of Civil Procedure 60(b). (Doc. No. 18.
[“Mot.”].) For the reasons set forth herein, plaintiff’s motion for relief from a final judgment is
DENIED.
I.

BACKGROUND
On April 11, 2013, pro se plaintiff David A. Gambino, a federal inmate at the Northeast

Ohio Correctional Center (“NEOCC”), filed the above captioned in forma pauperis civil rights
action against NEOCC Warden Michael Pugh, Assistant Warden Dennis Johnson, Sean
Daugherty, Captain Austin, Captain Grigsby, Officer Stump, Officer Bruno, Officer Pakavich, and
William Zeyer. (Doc. No. 1. [“Compl.”].) In his complaint, plaintiff asserts that he was subjected
to cruel and unusual punishment in violation of the Eighth Amendment because he was allegedly
denied toilet paper after exhausting his weekly allotment of two rolls, resulting in medical

problems. (Compl. at 8–12.1) Plaintiff also alleges that Officer Stump “inflicted wanton pain
maliciously and sadistically to my genitals during a full body patdown that was used to intimidate
and harass me and outside of any true penological objectives.” (Id. at 15.) Further, plaintiff accuses
Officer Stump of various acts of harassment, allegedly in retaliation for prior grievances filed by
plaintiff. (Id. at 15–16.) Plaintiff alleges that his ability to formally complain about his treatment
was limited by a policy restricting prisoners who abuse the grievance process from bringing new
grievances before pending grievances have been resolved. (Id. at 22–23.) He asserts that his right
to free exercise of religion was restricted when, after failing to pass and refusing to retake a test
on his understanding of and belief in Judaism, he was not given kosher meals or Jewish literature.
(Id. at 26–27.)
On October 1, 2013, this Court dismissed plaintiff’s complaint in its entirety pursuant to
28 U.S.C. § 1915(e) for failing to state a claim upon which relief can be granted. (Doc. No. 11.)
Judgment was entered the same day. (Doc. No. 12.) Of note, the dismissal by this Court was issued
without prejudice to any valid state law claim that plaintiff may have under the facts alleged.
Since the Court entered judgment nearly five years ago, plaintiff has worked his case
through the state court system. On December 17, 2014, plaintiff filed a case in the Mahoning
County Court of Common Pleas repeating the allegations made in this Court against officials at
NEOCC and adding three medical malpractice claims. Gambino v. Pugh, No. 15 MA 0138, 2016
WL 5885408, at *1 (Ohio Ct. App. Sept. 26, 2016). On July 29, 2015, the state trial court dismissed
plaintiff’s case. Plaintiff then appealed to the Ohio Seventh District Court of Appeals. On
September 26, 2016, the state appellate court reversed and remanded plaintiff’s one count of

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All page number references are to the page identification number generated by the Court’s electronic docketing
system.

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negligence, but affirmed the state trial court’s judgment with respect to all other counts. On
remand, the state trial court granted summary judgment in favor of the defendants on the
negligence claim, and, on March 23, 2018, the trial court’s judgment was affirmed on appeal. On
June 16, 2018, plaintiff filed the present motion in this Court seeking relief from this Court’s
October 1, 2013, judgment pursuant to Federal Rule of Civil Procedure 60(b)(1)(2)(3), (6).
II. STANDARD OF REVIEW
Rule 60(b) describes the circumstances under which a party may obtain relief from a
judgment or order of a federal court and provides, in pertinent part:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
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(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);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
...
(6) any other reason that justified relief.
Fed. R. Civ. P. 60(b)(1)–(3), (6). Rule 60(b) allows a court to relieve a party from a final judgment,
order, or proceeding under certain circumstances. The rule does not grant a defeated litigant “a
second chance to convince the court to rule in his or her favor by presenting new explanations,
legal theories, or proof.” Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). “[R]elief
under Rule 60(b) is ‘circumscribed by public policy favoring finality of judgments and termination
of litigation.’” Blue Diamond Coal Co. v. Trs. of UMWA Combined Benefit Fund, 249 F.3d 519,
524 (6th Cir. 2001) (quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d 290, 292
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(6th Cir. 1992)). Rule 60(b) motions are addressed to the discretion of the district court. See
Thompson v. Am. Home Assurance Co., 95 F.3d 429, 433 (6th Cir. 1996). The movant bears the
burden of establishing the basis for relief by clear and convincing evidence. Info-Hold, Inc. v.
Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008). Further, Rule 60(c)(1) provides: “A motion
under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more
than a year after the entry of the judgment or order or the date of the proceeding.”
III.

DISCUSSION
In his motion, plaintiff claims that the Court should relieve him from the October 1, 2013,

judgment because, in essence, (1) this Court made a mistake when it directed his negligence claims
to state court, (2) there is newly discovered evidence “only available in [s]tate cases, (3) the
defendants fraudulently concealed evidence, and (4) the interests of justice will be served. (Mot.
at 96.)
Rule 60(b)(1)–(3)
As set forth above, motions brought under Rule 60(b)(1)–(3) must be brought within a
“reasonable time” and no more than “a year after the entry of the judgment or order.” Fed. Rule
Civ. P. 60(b)(c)(1); Conner v. Attorney Gen. of the U.S., 96 F. App’x 990, 992–93 (6th Cir. 2004)
(citing Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989)). Here, this
Court entered judgment on October 1, 2013. (Doc. No. 12.) Plaintiff did not file his Rule 60(b)
motion until June 14, 2018. More than four years have passed since the entry of judgment. As
such, plaintiff’s request for relief from judgment under Rule 60(b)(1)–(3) is untimely.
Rule 60(b)(6)
Plaintiff also contends that this Court should relieve him from the October 1, 2013,
judgment because “the interests of [j]ustice will be served.” (Mot. at 96.) Plaintiff contends that
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justice requires this Court to relieve him of the judgment and reopen his case because the state
court “unconstitutionally blocks poor persons imprisoned from redressing [c]onstitutional
violations.” (Id.) Plaintiff’s claim refers to his medical malpractice claims brought against various
officials at NEOCC.2 These claims were dismissed in state court because plaintiff failed to provide
an affidavit of merit as required by Ohio Civ. R. 10(D)(2).3 Gambino, 2016 WL 5885408, at *10.
In essence, plaintiff appears to argue that he was denied access to the courts because, as an indigent
pro se litigant, he could not afford to file the required affidavit of merit. (Mot. at 93.)
Although not labeled as such by plaintiff, this claim is best classified as a motion under
Rule 60(b)(6). Rule 60(b)(6) provides a “catchall” provision that permits courts to grant relief from
a final judgment for “any . . . reason that justifies relief.” Fed. Rule. Civ. P. 60(b)(6). Rule 60(b)(6)
applies “only in exceptional or extraordinary circumstances which are not addressed by the first
five numbered clauses of the Rule.” Gen. Med., P.C. v. Horizon/CMS Health Care Corp., 475 F.
App’x 65, 75 (6th Cir. 2012) (quoting Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291,
294 (6th Cir. 1989) (further citation omitted)). “The ‘something more,’ then, must include unusual
and extreme situations where principles of equity mandate relief.” Olle v. Henry & Wright Corp.,
910 F.2d 357, 365 (6th Cir. 1990).
Prisoners have a fundamental right of access to the courts. Bounds v. Smith, 430 U.S. 817,
821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). However, “[t]o state a claim for denial of access to
the courts, a prisoner must demonstrate actual prejudice to pending or contemplated litigation.”
Jackson v. Gill, 92 F. App’x 171, 173 (6th Cir. 2004) (citing Lewis v. Casey, 518 U.S. 343, 351,

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In state court, these claims were classified as medical malpractice claims based on language used by plaintiff and
plaintiff did not object to that classification. See Gambino, 2016 WL 5885408. .
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In his motion, plaintiff incorrectly identifies this rule as “Ohio Revised Code 10(D)(2)(d).” (Doc. No. 18.)

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116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996)). Further, the Supreme Court has limited the types of
cases for which prisoners may be able to demonstrate actual injury by being denied access to the
courts, stating that:
Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions
to slip-and-fall claims. The tools [Bounds] requires to be provided are those that the
inmates need in order to attack their sentences, directly or collaterally, and in order
to challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. In sum, “a prisoner’s right to access the courts extends to direct appeals
[of the prisoner’s conviction and/or sentence], habeas corpus applications, and civil rights claims
only.” Kitchen v. Snyder, No. 1:16-cv-190, 2016 WL 1578837, at *5 (W.D. Mich. Apr. 20, 2016)
(quoting Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc)). Of significance, a
plaintiff’s failure to file an affidavit of merit because of indigent status does not amount to a denial
of access to the courts. Id. at *5 (citing Lewis, 518 U.S. at 355); see also Klinger v. Corr. Corp. of
Am., Inc., No. 4:11CV2299, 2012 WL 12897339, at n.11 (N.D. Ohio Dec. 13, 2012) (citing Horne
v. United States, 223 F. App’x 154, 156 (3d Cir. 2007) (finding that a litigant’s pro se status does
not excuse the failure to comply with Ohio’s affidavit of merit requirement).
Plaintiff has failed to allege properly either a claim of denied access to the courts or a claim
of other “exceptional or extraordinary circumstance” warranting relief from judgment under Rule
60(b)(6). Plaintiff had access to the state and federal court systems, he filed numerous motions and
appeals, but he failed to file the required affidavit of merit. Plaintiff has not alleged interference
with access to the courts for any purpose directly relating to his conviction and/or sentence, habeas
corpus application, or civil rights. Plaintiff’s claim is that he was denied access to state courts to
file a medical malpractice claim. Dismissal for failure to file an affidavit of merit in a medical
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malpractice action does not amount to a denial of access to the courts. As such, plaintiff’s claim
under Rule 60(b)(6) is denied.
IV. CONCLUSION
For the reasons set forth herein, plaintiff’s motion to reinstate and reopen the October 1,
2013, order dismissing the complaint pursuant to Fed. R. Civ. P. 60(b)(1)(2)(3), (6) is DENIED.
Further, the Court certifies that an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1951(a)(3).
IT IS SO ORDERED.

Dated: September 25, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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