Wilson v. Reid, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
SILAS WILSON, JR.,

Plaintiff - Appellant,

v.

KEITH C. REID, individually and official
capacity, Tulsa Police Officer; CHUCK
JORDAN, individually and official
capacity, Chief of Police Tulsa Police
Department; G. T. BYNUM, individually
and official capacity, Mayor of City of
Tulsa; SALLY HOWE SMITH,
individually and official capacity, (former)
Court Clerk Tulsa County; DON
NEWBERRY, individually and official
capacity, Court Clerk Tulsa County; FNU
LNU, individually and official capacity,
Unknown Deputy Court Clerks;
STANLEY GLANTZ; GERALD M.
BENDER; G. CHRIS BENGE; TULSA
COUNTY; CITY OF TULSA;
OKLAHOMA SECRETARY OF STATE,

Defendants - Appellees.

No. 20-5015
(D.C. No. 4:18-CV-00374-JED-JFJ)
(N.D. Okla.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit

December 14, 2020

Christopher M. Wolpert
Clerk of Court
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Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Federal Rule of Civil Procedure 60(b) provides, in exceptional circumstances,
an opportunity for relief from a final judgment after the time for a Rule 59 motion
has expired. In this case, Plaintiff’s Rule 60(b) motion did not state a cognizable
argument and amounted to a relitigating of issues he could have brought in his first
appeal. The district court denied that motion and, exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
I.
Plaintiff Silas Wilson, Jr., a pro se prisoner litigant, sued defendants, various
local and county officials and entities, in the Western District of Oklahoma under 42
U.S.C. § 1983. Upon concluding that it was not a proper venue, that court transferred
the action to the Northern District of Oklahoma, which ordered Plaintiff to file an
amended complaint to cure certain identified deficiencies. Plaintiff timely filed his
amended complaint in accordance with the order, but the district court held that he
still failed to state a claim. The district court explained that Plaintiff failed to state a
cognizable constitutional violation related to an allegedly falsified affidavit. And, in
any event, the district court said, Supreme Court case law barred those claims. See
Heck v. Humphry, 512 U.S. 477, 487 (1994) (requiring district courts to dismiss any
§ 1983 claim that, if resolved in the plaintiff’s favor, would necessarily imply the
invalidity of his conviction or sentence). The district court also found that Plaintiff
failed to allege a cognizable claim stemming from the alleged withholding of public
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records. Accordingly, the district court dismissed Plaintiff’s amended complaint with
prejudice and entered judgment against him.
Plaintiff appealed the district court’s judgment and we affirmed. Wilson v.
Reid, 781 Fed. App’x 789 (10th Cir. 2019) (Wilson I). During the first appeal,
Plaintiff filed his Motion to Vacate Judgment and Set Aside the United States District
Court’s Order, pursuant to Federal Rule of Civil Procedure 60(b). After the first
appeal, the district court denied that motion and Plaintiff brought this appeal.
II.
Plaintiff appeals the order denying his motion, not the underlying judgment.
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). We review the
district court’s denial of a Rule 60(b) motion for abuse of discretion. Zurich N. Am.
v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (citing Servants of
Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000)). Relief under Rule 60(b) is
an extraordinary remedy that a court should give only in “exceptional circumstances”
and is “not a substitute for appeal.” Id. (internal citations omitted). Therefore, we
look only for a “clear or unmistakable error” and will reverse only if we find “a
complete absence of a reasonable basis” and we are “certain that the . . . decision is
wrong.” Id. (internal citations omitted).
III.
Plaintiff moved for relief under Rules 60(b)(1), (b)(4), and (b)(6). Rule 60
provides that “On motion and just terms, the court may relieve a party . . . from a
final judgment . . . for the following reasons: (1) mistake, inadvertence, surprise, or
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excusable neglect; . . . (4) the judgment is void; . . . (6) any other reason that justifies
relief. Fed. R. Civ. P. 60(b). Importantly to this case, a party may not use Rule 60(b)
to “revisit[] the issues already addressed” or to “advance[e] new arguments or
supporting facts which were otherwise available for presentation” earlier in the
proceeding. Van Skiver, 952 F.2d at 1243. “Reiterat[ing] the original issues raised
in [the] complaint” or “arguing that the district court misapplied the law or
misunderstood [the plaintiff’s] position” are not proper for a Rule 60(b) motion. Id.
at 1244.
Plaintiff premised his motion on the idea that the district court “mistakenly
misconstrued the true facts as alleged in [his complaint].” He argued that the
“amended complaint should have been properly construed liberally . . . according to
the . . . true facts alleged” and that it “alleged a violation of due process/equal
protection.” Plaintiff ultimately concluded that the district court (1) entered its
“order to dismiss . . . without even considering Plaintiff’s amended pleadings as a
whole,” (2) “misconstrued the facts alleged in Plaintiff’s amended complaint,”
(3) did not view “the allegations in the light most favorable to the Plaintiff,” and
(4) “based [its] resolution of Plaintiff’s claims on materially false information.”
Plaintiff contended that these errors prejudiced him, deprived him of due process, and
“render[ed] the judgment void on its face.” The district court held that Plaintiff’s
arguments all either “rehash[ed] or amplif[ied]” his original arguments or would not
have “nudg[ed] Plaintiff’s allegations from deficient to plausible.” We agree and
will address 60(b)(1), (4), and (6) each in turn.
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First, Rule 60(b)(1) provides relief for a mistake “in only two instances: (1)
when ‘a party has made an excusable litigation mistake or an attorney in the litigation
has acted without authority; or (2) whe[n] the judge has made a substantive mistake
of law or fact in the final judgment or order.’” Utah ex rel. Div. of Forestry, Fire &
State Lands v. United States, 528 F.3d 712, 722–23 (10th Cir. 2008) (alteration in
original) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.
1996)). Plaintiff did not argue inadvertence, surprise, or excusable neglect.
Plaintiff’s argument that the district court “mistakenly misconstrued the true
facts alleged in [his complaint]” is not proper for a Rule 60(b) motion. Van Skiver,
952 F.2d at 1243–44; see also Swam v. United States, 327 F.2d 431, 433 (7th Cir.
1964) (explaining that misconceiving the character of a cause of action is not “the
kind of mistake or inadvertence that comes within the ambit of Rule 60(b)”). A party
should bring such arguments via either Rule 59(e) or direct appeal. Van Skiver, 952
F.2d at 1244. And, on direct appeal, we affirmed the district court’s dismissal of
Plaintiff’s complaint. Wilson I, 781 Fed. App’x at 793. As for any new facts
Plaintiff attempted to introduce or new arguments he could have made earlier or in
his first appeal, we reject them as well. A motion under Rule 60(b) may not have its
basis in “arguments or supporting facts which were otherwise available for
presentation” earlier. Van Skiver, 952 F.3d at 1243. Therefore, we need not decide
whether these new facts or arguments would have changed the result of the case. We
simply conclude that the district court correctly dismissed them as inappropriate for a
Rule 60(b) motion.
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Next, we address Plaintiff’s Rule 60(b)(4) argument. “A judgment is void
under Rule 60(b)(4) ‘only in the rare instance where [the] judgment is premised
either on a certain type of jurisdictional error or on a violation of due process that
deprives a party of notice or the opportunity to be heard.’” Johnson v. Spencer, 950
F.3d 680, 694 (10th Cir. 2020) (alteration in original) (quoting United Student Aid
Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)). Plaintiff made no jurisdictional
argument, but he claimed the district court deprived him of due process. Relief for
lack of due process is not appropriate in a case in which the district court has not
deprived a party of “notice, hearing, or other fundamental constitutional rights.” See
V.T.A., Inc. v. Airco, Inc., 597 F.3d 220, 225 (10th Cir. 1979). The district court did
not deprive Plaintiff of a fundamental due process right in the underlying proceeding.
Before dismissing the case, the district court gave him opportunity to amend his
pleadings and, in doing so, even pointed out his deficiencies. Moreover, Plaintiff
appealed the district court’s judgment and could have raised a due process violation
at that time.
Finally, Relief under Rule 60(b)(6)’s catchall provision is “even more difficult
to attain and is appropriate only when it offends justice to deny such relief.” Zurich,
426 F.3d at 1293 (quoting Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir.
1999)). Furthermore, “Rule 60(b)’s categories are mutually exclusive.” Id. (citing
United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002)). So, to obtain relief
under Rule 60(b)(6), a party must make an argument that Rules 60(b)(1)–(5) do not
encompass. Id. (Rule 60(b)(6) “is restricted to reasons other than those enumerated
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in the previous five clauses.” (quoting Buck, 281 F.3d at 1314)). Plaintiff did not
state any ground for relief not within the scope of Rule 60(b)(1) or (b)(4).
Plaintiff’s Rule 60(b) motion and this appeal attempt to end-run our prior
affirmation of the district court’s dismissal of his claims, and they constitute an
impermissible second shot at appealing that judgment. Zurich, 426 F.3d at 1289
(Rule 60(b) is not a substitute for appeal). Because nothing in Plaintiff’s motion
justifies relief under Rule 60(b)(1), (4), or (6), we conclude the district court did not
abuse its discretion in denying Plaintiff’s Rule 60(b) motion for relief from judgment.
AFFIRMED.
Entered for the Court

Joel M. Carson III
Circuit Judge
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