United States District Court, D. Colorado
A. BRIMMER United States District Judge.
matter is before the Court on plaintiff's Notice to Court
of Fraud and Motion to Reopen Case Against State Defendants
[Docket No. 905]. The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
November 23, 2010, plaintiff filed his complaint in this case
seeking relief under 42 U.S.C. § 1983. Docket No. 1. On
January 6, 2012, plaintiff filed his third amended complaint,
Docket No. 254, which alleged claims against defendants
Carrol Warner, David Romero, and Joe Quintana (the
“State defendants”) for malicious prosecution and
conspiracy to commit malicious prosecution. Id. at
16-17, ¶¶ 78-82. During the time period discussed
in plaintiff's complaint, defendants Warner, Romero, and
Quintana were employees of the probation department for the
Seventh Judicial District of Colorado. See Docket
No. 694-1 at 1-2, ¶ 1; Docket No. 694-5 at 1-2, ¶
1; Docket No. 694-8 at 2, ¶ 1. Plaintiff additionally
alleged claims against defendant Quintana for unreasonable
search and seizure and conspiracy to commit unreasonable
search and seizure. Docket No. 254 at 19-20, ¶¶
6, 2015, the State defendants filed a motion for summary
judgment. Docket No. 694. On February 17, 2016, the
magistrate judge recommended that the Court grant the State
defendants' motion for summary judgment. Docket No. 783.
On March 29, 2016, the Court accepted the relevant portion of
the magistrate judge's recommendation and dismissed the
State defendants from this case. Docket No. 804.
January 6, 2017, plaintiff filed the instant motion seeking
to “[r]eopen his claims against the Carol Warner, Joe
Quintana, and David Romero” and to add two Colorado
Department of Corrections (“CDOC”) parole
officers to this case. Docket No. 905 at 1. In support of his
request, plaintiff states that CDOC responded to a subpoena
in an unrelated action and disclosed a “Chronlog,
” which “revealed the identity of the two unknown
parole officers that had illegaly [sic] invaded
[plaintiff's] home” and “revealed evidence of
a conspiracy between Joe Quintana and his parole officer Gary
Fear.” Id. In addition, plaintiff
attaches two documents to his motion allegedly showing that
defendant Warner was involved in his probation supervision in
2004 and 2005. Id. at 4. Plaintiff states that all
of this information was “fraudulently concealed”
and therefore seeks relief under Fed.R.Civ.P. 60(b)(3).
Id. at 4-5.
STANDARD OF REVIEW
60(b) relief is “extraordinary and may only be granted
in exceptional circumstances.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000).
To prevail on a Rule 60(b) motion, a party must show, among
other things, that he “discovered [new] evidence that,
with reasonable diligence, could not have been discovered in
time to move for a new trial, ” there is evidence of
“fraud . . . misrepresentation, or misconduct by an
opposing party, ” or he is entitled to relief for
“any other reason.” Fed.R.Civ.P. 60(b)(2), (3),
(6). Plaintiff's arguments fall under Rule 60(b)(3),
which allows a court to relieve a party from a final judgment
based on “fraud . . ., misrepresentation, or misconduct
by an opposing party.“ Fed.R.Civ.P.
party relying on Rule 60(b)(3) “must show ‘clear
and convincing proof' of fraud, misrepresentation, or
misconduct.” Zurich N. Am. v. Matrix Serv.,
Inc., 426 F.3d 1281, 1290 (10th Cir. 2005) (citation
omitted). “Intent to defraud is an ‘absolute
prerequisite' to a finding of fraud on the court.”
Id. at 1291 (citing Robinson v. Audi
Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir.
1995)). In addition, “the challenged behavior must
substantially have interfered with the aggrieved
party's ability fully and fairly to prepare for and
proceed at trial.” Id. at 1290 (citation
omitted; emphasis in original). Rule 60(b)(3) “is aimed
at judgments which are unfairly obtained, not at those which
are factually incorrect.” Id.
argues that he is entitled to relief pursuant to Rule
60(b)(3) because defendant Jeffrey Watts, Watts' counsel,
the State defendants, or the CDOC fraudulently concealed
materials pertinent to his claims. Docket No. 905 at 2.
According to plaintiff, several defendants, including
defendant Watts, subpoenaed plaintiff's CDOC file and
produced a bates stamped copy of that file to plaintiff.
Docket No. 931 at 1. The file that these defendants produced
to plaintiff did not contain a Chronlog. Id. In a
separate proceeding, CDOC responded to a subpoena issued by
plaintiff and “disclosed its Notes and Narratives in
its CHRONLOG” and other materials that were not part of
the file produced to plaintiff in this case. Docket No. 905
at 1. According to plaintiff, the Chronlog produced in the
separate proceeding provides the identities of two parole
officers who illegally searched plaintiff's home and
contradicts defendant Quintana's affidavit in support of
summary judgment. Id. at 2-3. In pertinent part, the
Chronlog describes the following incident on October 23,
In discussing this case at the office, it appears that CPO
Burch and Bogner were at this residence searching for ISP
escapee . CPOs were allowed in by 3 females who allowed
search. Escapee  was not located. Residence was chosen due
to , cousin of  who returned S ISP equipment. She found
it and returned as she thought there was a reward for the
return. Search of residence was consentual, and parties in
residence stated to CPOs that escapee  stayed at
thisresidence [sic] the weekend of October 17th, 2009.
No. 905 at 12 (capitalization modified). Plaintiff states
that, had counsel for defendant Watts or the CDOC produced
the Chronlog, plaintiff “would have named Parole
Officer[s] Burch and Bogner, and his claims against these
parties would never had [sic] been dismissed.” Docket
No. 905 at 3.
addition, the Chronlog states that, on September 23, 2005,
“Gary Fear-Received call from Joe Quintanna  O. is on
duel [sic] supervision-asked about how client is doing-will
have O. call his PO & send release to Progressive
Therapy.” Docket No. 905 at 13. Plaintiff argues that
this Chronlog entry contradicts the ...