Gallipeau v. Mickens et al

Filing 158

ORDER denying 156 Motion to Set Aside Judgment. Signed by Honorable Timothy M Cain on 4/9/2014.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Dennis M. Gallipeau,
Plaintiff,
v.
Linda Mickens Ham,
Defendant.

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C/A No. 3:09-1883-TMC
OPINION & ORDER

Plaintiff Dennis M. Gallipeau (“Plaintiff”) filed this action pursuant to 42 U.S.C. §1983.
This matter is before the court on Plaintiff’s Motion for Relief from Judgment. (ECF No. 156).
Defendant Linda Mickens Ham (“Defendant”) has filed a response opposing the motion. (ECF
No. 157). For the reasons set forth below, Plaintiff’s Motion for Relief from judgement is
denied.
This is Plaintiff’s second motion seeking relief from judgment in this action. (ECF No.
145). The court previously denied Plaintiff’s Motion for Relief from Judgment finding Plaintiff
had not shown he was entitled to relief under Fed.R.Civ.P. 60(b). (ECF No. 148). Plaintiff now
seeks to set aside the judgment entered in this case on the ground that there was a fraud
committed upon the court pursuant to Fed.R.Civ. P. 60(d)(3). (ECF No. 156).
Rule 60(b) of the Federal Rules of Civil Procedure allows a party to seek relief from a
final civil judgment in a limited number of circumstances, including: (1) mistake, inadvertence,
surprise, or neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct;
(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; and (6)
“any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1)-(6). Furthermore, pursuant to Rule
60(d) a court has the “power to . . . set aside a judgment for fraud on the court.” Fed.R.Civ.P.

60(d)(3).
However, not all fraud is considered to be fraud on the court. Great Coastal Express,
Inc. v. Int'l Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982). Courts have held that fraud
on the court “should be construed very narrowly,” and “is typically confined to the most
egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court
by an attorney, in which the integrity of the court and its ability to function impartially is directly
impinged.” Id. “By contrast, perjury and fabricated evidence alone, being evils which can be
exposed by the normal adversary process, do not constitute grounds for relief as ‘fraud on the
court.’” Rainwater v. Mallas, C/A No. 94-1122, 1994 WL 712570, at *2 (4th Cir. Dec. 23, 1994)
(per curiam) (citing Great Coastal Express, 675 F.2d at 1357); see also In re Genesys Data
Techs., Inc., 204 F.3d 124, 130-31 (4th Cir. 2000). Plaintiff’s allegations do not satisfy the
demanding standard for setting aside a judgment for fraud on the court.
Plaintiff contends that Defendant “planned and schemed to misrepresent the
administrative remedies available to Plaintiff at the Lexington County Detention Center.” (ECF
156 at 1). He contends that the grievance policy of the Lexington County Detention Center was
never made available to him and the summary which was available to him was not accurate. Id.
at 2-3. Specifically, he alleges the summary states that a response to a grievance will be made
within ten days, but the policy actually allows ten working days for a response. Id. at 3.
Because Plaintiff had the opportunity to discover any alleged fraud before the judgment was
entered in this action, Plaintiff cannot establish the type of gross injustice justifying relief or that
fraud prevented fair adjudication of the issues through the ordinary judicial process so as to
satisfy Rule 60(d)(3).
In her response to this motion, Defendant requests that the court count this case as a
strike pursuant to the Prison Litigation Reform Act, 28 U.S.C. §1915 (g) (counting as strikes any
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action or appeal in federal court “that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted.”). As this case is not an
action which was dismissed as frivolous or malicious, or because it failed to state a claim upon
which relief may be granted, the court declines to impose a strike. However, Plaintiff is ordered
to cease filing groundless and/or inappropriate motions in this case, and his failure to comply
with this requirement may result in the imposition of filing restrictions.
Accordingly, Plaintiff’s Motion for Relief from Judgment pursuant to Fed.R.Civ.P.
60(d)(3) (ECF No. 156) is DENIED.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
April 9, 2014

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure, if applicable.

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