[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 29, 2005
No. 05-12102 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-01524-CV-JEC-1
RODERICK O. SOLOMON,
Plaintiff-Appellant,
versus
DEKALB COUNTY, GEORGIA,
THOMAS E. BROWN, JR., Individually and in His
Official Capacity as Director of Public Safety
of DeKalb County, Georgia, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 29, 2005)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Roderick O. Solomon, proceeding pro se, appeals the district
court’s order denying Solomon’s Fed. R. Civ. P. 60(b) and 60(b)(3) motions for
relief from the district court’s grant of summary judgment in favor of DeKalb
County, Georgia; Thomas E. Brown, Jr., Director of Public Safety of DeKalb
County; Robert T. Burgess, Sr., DeKalb County Police Chief; Officer Michael E.
Hannah, DeKalb County Police; and John Does 1-3, DeKalb County Police
Officers (collectively referred to as “DeKalb defendants”); and SED International,
Inc.; Mark Devito; and Jonathan Elster (collectively referred to as “SED
defendants”) (all defendants collectively referred to as “Defendants”). Solomon
filed Rule 60(b) and 60(b)(3) motions in the district court after summary judgment
was awarded to the Defendants on all counts in his 42 U.S.C. § 1983 and state
causes of action suit, originally filed in state court and removed to the district court
by the Defendants.
I.
Solomon argues that he is entitled to Rule 60(b) relief due to the existence of
credible evidence of police misconduct and bad faith.
“[A] district court’s order under Rule 60(b) is reviewable only for abuse of
discretion.” Am. Bankers Ins. Co. of Florida v. Northwestern Nat’l Ins. Co., 198
F.3d 1332, 1338 (11th Cir. 1999). Rule 60(b) provides that
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the [district] court may relieve a party or a party’s legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(w hether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
Fed. R. Civ. P. 60(b).
This Court has held that
[a]n appeal of a ruling on a Rule 60(b) motion, however, is narrow in
scope, addressing only the propriety of the denial or grant of relief and
does not raise issues in the underlying judgment for review. Because
of this limitation, the law is clear that Rule 60(b) may not be used to
challenge mistakes of law which could have been raised on direct
appeal.
Am. Bankers Ins. Co., 198 F.3d at 1338 (citation omitted). “Rule 60(b) and the
independent actions its savings clause preserves give the court the power to set
aside a judgment whose integrity is lacking. What Rule 60(b) and these
independent actions do not provide is a means for litigants to obtain the district
court’s reconsideration of the claims and defenses its judgment adjudicated.”
Gonzalez v. Sec’y for Dep’t of Corrections, 366 F.3d 1253, 1295 (11th Cir. 2004)
(en banc) (Tjoflat, J., concurring in part, dissenting in part), cert. granted in part,
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125 S. Ct. 961 (2005), cert. denied in part, 125 S. Ct. 965 (2005), affirmed on
other grounds sub nom. Gonzalez v. Crosby, __ U.S. __, 125 S. Ct. 2641, __ L.
Ed. 2d __ (2005) (emphasis in original) (citing Am. Bankers Ins. Co., 198 F.3d at
1338). “[R]elief under this clause [60(b)(6)] is an extraordinary remedy which
may be invoked only upon a showing of exceptional circumstances. The party
seeking relief has the burden of showing that absent such relief, an ‘extreme’ and
‘unexpected’ hardship will result.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680
(11th Cir. 1984) (citation omitted).
After reviewing the record, we conclude that the district court did not abuse
its discretion by denying Solomon’s Rule 60(b) motion. The bulk of Solomon’s
argument in his motion in the district court was that the district court erred by
granting summary judgment. These contentions are not the proper foundation of a
Rule 60(b) motion. Solomon offered no basis in the district court or on appeal why
he should be relieved from the district court’s judgment or how, absent such relief,
“extreme” or “unexpected” hardship will result. It is apparent that Solomon is
attempting to obtain this court’s review of claims contained in his appeals
previously dismissed by this court. Rule 60(b) is simply not the proper avenue for
such review. Therefore, the district court did not abuse its discretion by denying
the motion.
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II.
Solomon argues that the DeKalb defendants’ incomplete responses to his
interrogatories merit relief under Rule 60(b)(3). He contends that police officers
lied to the state magistrate regarding facts supporting Solomon’s arrest warrant.
He submits that evidence contradicts the statements of DeKalb defendants at his
state preliminary hearing. He asserts that the DeKalb defendants committed
discovery abuses warranting relief. He argues that the SED defendants lied at his
state preliminary hearing to fraudulently create a motive for his actions, which
warrants relief for fraud or misrepresentation under Rule 60(b)(3).
“[A] district court’s order under Rule 60(b) is reviewable only for abuse of
discretion.” Am. Bankers Ins. Co., 198 F.3d at 1338. Rule 60(b)(3) provides relief
from final judgment due to “fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party.” Fed. R.
Civ. P. 60(b)(3).
“To obtain relief from a final judgment based upon fraud under Rule
60(b)(3), the moving party must prove by clear and convincing evidence that the
adverse party obtained the verdict through fraud, misrepresentations, or other
misconduct. The moving party must also demonstrate that the conduct prevented
them from fully presenting his case.” Waddell v. Hendry County Sheriff’s Office,
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329 F.3d 1300, 1309 (11th Cir. 2003) (citation omitted). When a party knows of
evidence but chooses not to present it or seek additional discovery for further
investigation, that party is not entitled to Rule 60(b) relief following summary
judgment. See id. at 1310.
We conclude from the record that the district court did not abuse its
discretion by denying Solomon’s Rule 60(b)(3) motion. Although Solomon
alleges that various parties misrepresented facts at hearings and depositions and
committed discovery abuses, he fails to set out his allegations with specificity or
by clear and convincing evidence. Further, even assuming that Solomon had
demonstrated his claims by clear and convincing evidence, he does not show how
such conduct prevented him from fully presenting his case. Solomon has not
provided any reason why he could not or did not provide the evidence of which he
complains to the district court. Therefore, the district court did not abuse its
discretion by denying the motion.
For the foregoing reasons, we affirm the district court’s order denying
Solomon’s Rule 60(b) motions.
AFFIRMED.
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