John Dahlk v. Michelle Woomer ( 2016 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 10, 2016 *
Decided March 14, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15-2278
JOHN G. DAHLK, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 12-CV-556
MICHELLE WOOMER, et al., Rudolph T. Randa,
Defendants-Appellees. Judge.
ORDER
John Dahlk, a Wisconsin inmate, appeals the denial of his postjudgment motion
to set aside the grant of summary judgment against him in his civil-rights suit alleging
deliberate indifference of prison officials. The district court denied the motion, and we
affirm.
Dahlk sued several prison officials under 42 U.S.C. § 1983, asserting that they
had been deliberately indifferent in treating a wound on his inner thigh. Tests revealed
the presence of E. coli, for which he was prescribed a course of antibiotics. Dahlk
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. The appeal is thus submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-2278 Page 2
faulted medical staff for not treating the wound more aggressively and for disregarding
his allergy to penicillin. The district court granted summary judgment for the
defendants, and we affirmed. See Dahlk v. Woomer, 592 F. App’x 523 (7th Cir. 2015).
While that appeal was pending in this court, Dahlk filed a motion under Federal
Rule of Civil Procedure 60(b) urging the district court to vacate its grant of summary
judgment based on his claim that the proceedings were tainted by the defendants’
fraud. He attached documents purportedly showing that the affidavits submitted by the
defendants at summary judgment contained false statements and that the defendants
had tampered with his medical records. After we denied Dahlk’s first appeal, the
district court denied his postjudgment motion, explaining that “there is nothing in the
plaintiff’s submissions that undermines or changes the outcome of the case.”
In this appeal Dahlk maintains that the defendants committed perjury and
doctored evidence during the underlying proceedings. But he has not shown that the
district court abused its discretion in denying his motion. A party seeking to set aside a
judgment under Rule 60(b)(3) must prove fraud by clear and convincing evidence,
Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010), and Dahlk has fallen far short of
that standard. He highlights trivial discrepancies among his medical records and
defendants’ assorted submissions, but none of these supposed inconsistencies
constitutes clear proof of fraud.
In any event, the evidence to which Dahlk points was not newly discovered.
Under Rule 60(b)(2), evidence is “new” only if it is discovered after the litigation is over
and judgment has been entered. See Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002);
Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000). All of the documents he
submitted as proof of fraud either were or could have been submitted at summary
judgment.
Dahlk also argues that the district court erred by declining to strike the
defendants’ response to his Rule 60(b) motion based on their failure to attach a
certificate of service. But we give considerable deference to a district court’s decision to
excuse harmless procedural mistakes, see Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir.
2011), and Dahlk himself conceded in his motion to strike that he still received a copy of
the response at least three months before the district court ruled on his Rule 60(b)
motion.
AFFIRMED.