Parker v. Gosmanova , 378 F. App'x 816 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
May 18, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ALVIN PARKER,
Plaintiff - Appellant, No. 10-6044
v. (W.D. Oklahoma)
ALBINA GOSMANOVA, Doctor of (D.C. No. 5:07-CV-00837-D)
Medicine; JESUS MEDINA, Doctor of
Medicine, OU MEDICAL CENTER,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
In this appeal Alvin Parker attempts to mislead (defraud?) this court into
believing that the defendants committed a fraud on the district court. His attempt
fails.
Mr. Parker sued the defendants in the United States District Court for the
Western District of Oklahoma under 28 U.S.C. § 1983, alleging that they violated
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent except under the doctrines of law of the case, res judicata,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.
his rights under the Eighth Amendment to the United States Constitution (as
incorporated by the Fourteenth Amendment to apply to the States). The gist of
the claim is that while he was a prisoner in state custody, he was improperly
treated for a benign thyroid tumor that was surgically removed. The district court
granted the defendants summary judgment, and this court affirmed. See Parker v.
Gosmanova, 335 F. App’x 791 (10th Cir. 2009).
On January 28, 2010, Mr. Parker filed a motion “pursuant to Rule 60(b),”
R., Vol. 1 at 232, seeking to set aside the judgment against him. He contended
that he could have defeated summary judgment if he had been able to show the
court “that the physician who interpreted the biopsy test [of his thyroid] had
recommended that additional materials be submitted in nine to twelve months if
clinicalpathological persists.” Id. He asserted that this recommendation did not
appear in the copy of the pathology report attached to the defendants’ motion for
summary judgment and that “it was not until the plaintiff had compared the
defendants[’] provided document closely to the one from the Martinez report that
he discovered and understood the distinction[;] by then the plaintiff’s case was
being affirmed on appeal by the 10th Circuit.” Id. at 233; see Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978) (authorizing district courts to order prison officials
to investigate civil-rights complaints and prepare a report for submission to the
court).
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The district court denied the motion as untimely because it was based on a
claim of newly discovered evidence and was filed more than one year after entry
of judgment on November 10, 2008. See Fed. R. Civ. P. 60(c). On appeal
Mr. Parker contends that the one-year limitations period does not apply because
he is alleging that failure to provide a correct copy of the pathology report
constituted a fraud on the court. This claim fails on three counts. First,
Mr. Parker filed his motion as one “pursuant to Rule 60(b),” R., Vol. 1 at 232; but
a motion for relief from judgment based on fraud on the court is not a motion
under Rule 60(b), see Fed. R. Civ. P. 60(d)(3); United States v. Buck, 281 F.3d
1336 (10th Cir. 2002).
Second, even were we to construe Mr. Parker’s pro se motion as an
independent action for fraud on the court, his allegations do not state a claim of
fraud on the court. As we stated in Buck,
Generally speaking, only the most egregious misconduct, such as
bribery of a judge or members of a jury, or the fabrication of
evidence by a party in which an attorney is implicated will constitute
a fraud on the court. Less egregious misconduct, such as
nondisclosure to the court of facts allegedly pertinent to the matter
before it, will not ordinarily rise to the level of fraud on the court.
281 F.3d at 1342 (internal quotation marks omitted). Mr. Parker did not allege
the necessary egregious misconduct. Indeed, a footnote in his motion states,
“[W]hether this omission was merely a copying error is irrelevant.” R., Vol. 1 at
233 n.1.
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Third, if there was any fraud perpetrated on the court in this case, it was
apparently by Mr. Parker, not the defendants. Although he claims that the
pathology report attached to the defendants’ motion for summary judgment did
not contain the pathologist’s recommendation for follow-up, the attachment to the
motion in the record on appeal contains the recommendation, and Mr. Parker
acknowledges that the complete pathology report was contained in the Martinez
report, which was served upon him before the motion for summary judgment.
Most importantly, Mr. Parker’s response to the defendants’ motion for summary
judgment devotes to the pathology report a paragraph that includes the following
sentence: “Additional materials were recommended be submitted in 6-9 months
if clinical suspicious persists and clinicopathologic correlation.” R., Vol. 1 at
172. Mr. Parker’s assertion that he did not know of the pathologist’s
recommendation until the case was on appeal is obviously a fabrication.
We AFFIRM the district court’s denial of Mr. Parker’s motion. We DENY
his motion for leave to proceed in forma pauperis. Both the district court’s denial
of Mr. Parker’s motion and our affirmance of that denial COUNT AS STRIKES
for purposes of 28 U.S.C. § 1915(g).
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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