Alford v. Mohr et al

Filing 162

ORDER AND REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED that plaintiffs motion (Doc. 161 ) be DENIED. IT IS THEREFORE ORDERED that the Clerk shall send plaintiff a copy of this Report and Recommendation to the address listed on his moti on (Doc. 161), and plaintiff shall file a notice of change of address. (Objections to R&R due by 10/31/2022). Signed by Magistrate Judge Karen L. Litkovitz on 10/17/2022. (bjc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:15-cv-00645-MWM-KLL Doc #: 162 Filed: 10/17/22 Page: 1 of 5 PAGEID #: 2378

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRIAN K. ALFORD,
Plaintiff,
vs.
GARY MOHR, et al.,
Defendants.

Case No. 1:15-cv-645
McFarland, J.
Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION

This matter is before the Court on plaintiff Brian K. Alford’s “Motion for Releief (sic) of
Judgment Pursuant to Federal Rules Civil Procedure 60(b) (4) (6).” (Doc. 161). Plaintiff is
currently an inmate at the Ross Correctional Institution (RCI), but his complaint in this action
alleged violations of his civil rights that occurred during his incarceration at the Lebanon
Correctional Institution. 1 On March 12, 2020, the undersigned issued a Report and
Recommendation that summary judgment be granted in favor of the only remaining defendant,
Rick Malott, because plaintiff did not raise a genuine issue of material fact that defendant
Malott’s actions proximately caused his injuries. (Doc. 149 at PAGEID 2296-97). On April 13,
2020, the District Judge adopted the Report and Recommendation over plaintiff’s objection.
(Doc. 153). Plaintiff initially pursued an appeal of this decision (Doc. 155), but the Sixth Circuit
dismissed the appeal for want of prosecution on July 29, 2021 (Doc. 160). Plaintiff filed the
pending motion on August 11, 2022—just over one year later.
Rule 60(b) provides for relief from a judgment for the following reasons:
(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);

While the docket reflects plaintiff’s current address at the Toledo Correctional Institution consistent with plaintiff’s
most recent notice regarding a change in his address (Doc. 84), his pending motion reflects that he is an inmate at
RCI.
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(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Plaintiff invokes subsections (4) and (6), arguing that “the court’s order granting
summary judgment is void, as it denied Movant due process and equal protection under the
United States Constitution.” (Doc. 161 at PAGEID 2342). Plaintiff’s motion generally restates
the allegations of his complaint and the evidence presented by the parties during the briefing on
summary judgment. (Id. at PAGEID 2342-44). Plaintiff then argues that he “adduced evidence
creating a genuine issue of fact on the causation of his § 19[8]3 claim”—further insisting that
fellow inmates “could verify [Eighth Amendment] violations occurred” and that “[a]dditional
discovery” would have resulted in evidence “clearly establish[ing] a causal connection” between
plaintiff’s injuries and the alleged constitutional violations. (Id. at PAGEID 2344-45). Finally,
plaintiff accuses unspecified Ohio Department of Rehabilitation and Correction staff of improper
conduct related to his legal documents. (Id. at PAGEID 2345-46 (plaintiff states that he “was
forced to mail one . . . legal box . . . to his father . . . in spite of active, pending litigation in this . .
. case[;]” that the box was “destroyed after being shipped[;]” and that he was overcharged for the
shipment)). It is only at the close of his motion that plaintiff returns to his argument that the
judgment is void: “Because of the issues of material fact in dispute[] by Plaintiff, the judgment
granting summary judgment is void and requires relief from the judgment. . . .” (Id. at PAGEID
2346).
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“A judgment is void under 60(b)(4) ‘if the court that rendered it lacked jurisdiction of the
subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.’”
Antoine v. Atlas Turner, Inc., 66 F.3d 105, 108 (6th Cir. 1995) (quoting In re Edwards, 962 F.2d
641, 644 (7th Cir. 1992)). The first prong of Rule 60(b)(4) refers to a jurisdictional error; the
fact that a judgment is erroneous does mean that it is void. See Northridge Church v. Charter
Twp. of Plymouth, 647 F.3d 606, 611 (6th Cir. 2011) (citing United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 270 (2010)). The second prong of Rule 60(b)(4) refers to a situation in
which a party is “deprive[d] . . . of notice or the opportunity to be heard.” Espinosa, 559 U.S. at
271 (citations omitted). Rule 60(b)(4) is not a substitute for an appeal. Id.
Plaintiff abandoned his appeal of the Order at issue (see Doc. 160), and plaintiff makes
no substantive argument related to flaws with the Court’s jurisdiction or the process it afforded
to plaintiff. Plaintiff argues only that the Court wrongly decided defendant Malott’s summary
judgment motion. This does not warrant relief under Rule 60(b)(4). 2
Rule 60(b)(6), the catchall provision, applies “only in exceptional or extraordinary
circumstances which are not addressed by the first five numbered clauses of the Rule.” Hopper
v. Euclid Manor Nursing Home, 867 F.2d 291, 294 (6th Cir. 1989) (citation omitted). Plaintiff
does not explicitly point to the circumstances he believes relevant to this subsection, but the
Court infers that plaintiff relies on the alleged issues with his legal mail. Even to the extent these
issues would rise to the level of the “exceptional or extraordinary circumstances” contemplated
by the catchall provision, the Court cannot conceive of why or how issues that did not begin—
according to plaintiff—until early 2022 (see Doc. 161 at PAGEID 2345-46) would have any

To the extent plaintiff refers to evidence not considered by the Court in connection with its ruling on summary
judgment (see Doc. 161 at PAGEID 2345), he makes no argument that such evidence is new for purposes of Rule
60(b)(2).
2

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bearing on the April 2020 judgment at issue.
IT IS THEREFORE RECOMMENDED that plaintiff’s motion (Doc. 161) be
DENIED.
IT IS THEREFORE ORDERED that the Clerk shall send plaintiff a copy of this
Report and Recommendation to the address listed on his motion (Doc. 161), and plaintiff shall
file a notice of change of address.

__________________________________
Karen L. Litkovitz
Chief United States Magistrate Judge

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Case: 1:15-cv-00645-MWM-KLL Doc #: 162 Filed: 10/17/22 Page: 5 of 5 PAGEID #: 2382

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRIAN K. ALFORD,
Plaintiff,

Case No. 1:15-cv-645
McFarland, J.
Litkovitz, M.J.

vs.
GARY MOHR, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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