Haynes v. Memmen ( 2013 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    February 27, 2013
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    LLOYD VICTOR HAYNES,
    Plaintiff - Appellant,                   No. 12-1277
    v.                                           (D. Colorado)
    RYAN MEMMEN; UNITED STATES                (D.C. No. 1:03-CV-00577-RBJ-MEH)
    OF AMERICA,
    Defendants - Appellees.
    ORDER AND JUDGMENT *
    Before HARTZ, EBEL, and MURPHY, Circuit Judges.
    Prisoner Lloyd Victor Haynes sued Ryan Memmen and the United States in
    the United States District Court for the District of Colorado, seeking damages for
    injuries he sustained in an automobile collision while being transported by the
    government. As a sanction for Haynes’s failure to respond to discovery requests,
    the court dismissed the action. More than seven years later, Haynes sought to set
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
    precedent except under the doctrines of law of the case, res judicata, and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.
    aside the dismissal on the grounds of fraud on the court, see United States v.
    Beggerly, 
    524 U.S. 38
    , 45 (1998); Fed. R. Civ. P. 60(d)(3), and the district
    judge’s failure to disqualify himself, see 
    28 U.S.C. § 455
    . The court denied
    relief, and Haynes, proceeding pro se, appeals the denial. Exercising jurisdiction
    under 
    28 U.S.C. § 1291
    , we affirm.
    I.    BACKGROUND
    On April 4, 2003, Haynes filed a complaint against Memmen, Steve Bush,
    and the United States Department of Justice, alleging that he sustained injuries
    when Bush, a government employee, negligently operated the government-owned
    vehicle in which Haynes was a passenger, causing a collision with a vehicle
    negligently operated by Memmen. An amended complaint named as a defendant
    the United States in place of Bush and the Department of Justice. See 
    id.
    § 2679(d)(1) (government shall be substituted as party defendant in suit against
    government employee certified to have been acting within scope of his
    employment).
    On March 31, 2004, the government filed a motion to compel Haynes to
    respond to its request for production of documents. The magistrate judge ordered
    a response by April 16. Shortly thereafter, Haynes’s attorney, Terry Rector, filed
    a motion to withdraw as counsel, explaining that he could not locate or contact
    Haynes and that he was “unable to represent [Haynes] competently and zealously
    under these circumstances.” R., Vol. 1, tab 46 at 2. On April 16, the deadline for
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    Haynes to respond to the motion to compel, the court granted Rector’s motion to
    withdraw, noting that Haynes would be “responsible for complying with all future
    court deadlines in this case.” Id., tab 48 at 1. Haynes did not respond to the
    motion to compel. On June 21, 2004, the district court dismissed the action.
    The record reflects no further activity in the case until March 12, 2007,
    when Haynes filed a “Motion for Status Report,” id., Vol. 2 at 6, followed two
    months later by an additional pleading seeking a response to his March 12
    motion. The district court mailed to the address on Haynes’s most recent
    pleadings a copy of the order dismissing the case.
    In 2007 and 2008 Haynes twice attempted to reopen the case. First, he
    filed a pro se “Motion to Proceed with Complaint,” id. at 19, asserting that he had
    not received notice of the June 2004 dismissal and blaming Rector, his former
    attorney, for the failure to pursue his claims properly. When the district court did
    not rule on that motion, he filed a Rule 60(b) motion for relief from the dismissal,
    raising similar arguments. The magistrate judge recommended that the Rule
    60(b) motion be denied because it was not “made within a reasonable time,” Fed.
    R. Civ. P. 60(c)(1), and because the allegations in the motion did not warrant
    relief. The district court adopted the magistrate judge’s recommendation and
    denied relief on August 25, 2008.
    On September 9, 2009, Haynes, now represented by an attorney, filed a
    motion for relief from the dismissal of his claim, his third attempt to reopen the
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    case. The pleading repeated the arguments from his two previous postjudgment
    motions. It also asserted that counsel for the government had fraudulently
    misrepresented to the court that Haynes had not answered the government’s
    interrogatories, and that Haynes’s hypothyroidism (caused by the traffic accident)
    had prevented him from properly prosecuting the action. In November 2009 the
    district court again denied relief.
    On January 9, 2012, Haynes, once again proceeding pro se, filed a pleading
    styled simply “Rule 60(d)(3).” R., Vol. 2 at 135; see Fed. R. Civ. P. 60(d)(3)
    (stating that Rule 60 does not limit a court’s authority to “set aside a judgment for
    fraud on the court”). It alleged that counsel for the government had committed
    fraud on the court by misrepresenting that Haynes had failed to comply with his
    discovery obligations when he had, in fact, complied. It also raised as an
    independent ground for relief that the district judge had failed to disqualify
    himself despite personal bias and a financial interest in the case. See 
    28 U.S.C. § 455
    (a), (b)(1), (b)(4). To support this claim, Haynes asserted that court
    employees are paid by the United States Marshals Service (the employer of
    former defendant Bush), that the judge works with marshals, and that the court
    failed to provide him with court documents relating to the dismissal of his case.
    The court summarily denied relief.
    Haynes appeals the rejection of his latest attempt to reopen the case. His
    brief on appeal raises instances of alleged fraud that, he argues, justify relief
    -4-
    under Fed. R. Civ. P. 60(d)(3). And in support of his claim under 
    28 U.S.C. § 455
    , he incorporates by reference a “Motion for Change of Venue/Motion for
    Disqualification of Judge” filed in the district court, in which he argued that
    earlier rulings by the court, along with the relationship between the court and
    Bush, demonstrate the judge’s partiality. R., Vol. 2 at 171.
    II.   DISCUSSION
    A.     Fraud on the Court
    Haynes’s brief in this court attempts to support his fraud-on-the-court claim
    by pointing to alleged fraud by Rector, his former attorney, and by the court
    itself. But Haynes’s motion in the district court alleged only a single instance of
    fraud: the failure by the attorney for the government to notify the court that
    Haynes had complied with discovery requests. The motion made no reference to
    Rector and pointed to no instances of alleged fraud by the court. We decline to
    review issues not raised below. See Walters v. Wal-Mart Stores, Inc., 
    703 F.3d 1167
    , 1173 (10th Cir. 2013).
    We likewise decline to consider the only claim of fraud on the court that
    Haynes presented to the district court: fraud by the government’s attorney. By
    not raising this claim on appeal, he has waived it. See Lindstrom v. United States,
    
    510 F.3d 1191
    , 1196 (10th Cir. 2007).
    B.     District Judge’s Failure to Disqualify Himself
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    Haynes also asserts that the district judge was obligated under 
    28 U.S.C. § 455
     to disqualify himself but failed to do so. Because Haynes does not suggest
    any other avenue for setting aside a judgment on this ground, we assume that he
    is proceeding under Fed. R. Civ. P. 60(b)(6), which permits setting aside a
    judgment for “any other reason that justifies relief.” Such a motion must,
    however, be “made within a reasonable time.” Fed. R. Civ. P. 60(c)(1), see also
    United States v. Pearson, 
    203 F.3d 1243
    , 1276 (10th Cir. 2000) (“[Section] 455(a)
    motions for recusal must be timely filed. Although this circuit has not attempted
    to define the precise moment at which a § 455(a) motion to recuse becomes
    untimely, our precedent requires a party to act promptly once it knows of the facts
    on which it relies in its motion.” (citation and internal quotation marks omitted)).
    All the alleged facts upon which Haynes relies for his claims of bias were readily
    available at the time the action was dismissed in June 2004. By waiting over
    seven years, Haynes failed to act promptly in seeking recusal.
    III.   CONCLUSION
    We AFFIRM the district court’s judgment. We DENY Haynes’s motion to
    proceed in forma pauperis.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
    -6-
    

Document Info

Docket Number: 12-1277

Judges: Hartz, Ebel, Murphy

Filed Date: 2/27/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024