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Carbajal v. Lucio

United States District Court, D. Colorado

June 28, 2017

GILBERTO LUCIO, in his individual capacity, JAMES DIXON, in his individual capacity, MICHAEL O'NEILL, in his individual capacity, and JEFFREY WATTS, Investigator for the Second Judicial District, in his individual capacity, Defendants.


          PHILIP A. BRIMMER United States District Judge.

         This matter is before the Court on plaintiff's Notice to Court of Fraud and Motion to Reopen Case Against State Defendants [Docket No. 905].[1] The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND

         On 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, ¶¶ 91-95.

         On July 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.

         On 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.”[2] 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.


         Rule 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. 60(b)(3).[3]

         The 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.


         Plaintiff 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, 2009:

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.

         Docket 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.

         In 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 ...

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