Frank C. Johnson, Jr. v. Law Offices of Marshall , 348 F. App'x 447 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 2, 2009
No. 08-16351 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00225-CV-1-MMP-AK
FRANK C. JOHNSON, JR.,
RUTH B. JOHNSON,
Plaintiffs-Appellants,
versus
LAW OFFICES OF MARSHALL C. WATSON, PA,
d.b.a. In the State of Florida,
SHELLY POWELL, individually,
JP MORGAN CHASE BANK, as Trustee, et al.,
WILLIAM DAVID NEWMAN, JR., individually,
STEVEN ELLISON, individually, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 2, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Frank Johnson and Ruth Johnson, a husband and wife proceeding pro se,
appeal the district court’s order denying their motion for post-judgment relief,
pursuant to Federal Rule of Civil Procedure 60(b), of an order dismissing their 42
U.S.C. §§ 1981 and 1983 civil rights complaint. On appeal, the Johnsons argue
that: (1) the district court mistakenly determined that private actors cannot act
under color of state law; (2) the defendants committed a fraud on the district court
by conspiring with a Florida state court judge; (3) the district court erroneously
dismissed their civil rights complaint; and, (4) the district court abused its
discretion by denying the Johnsons’ motion for recusal of the district court judge.
We find each argument meritless. Therefore, we affirm.
We review the district court’s denial of relief under Rule 60(b) for an abuse
of discretion. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842
(11th Cir. 2008) (citations omitted). However, only the denial of relief as to the
motion filed under Rule 60(b) can be considered, not the underlying judgment.
Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). Rule 60(b)
cannot be used as a substitute for a proper and timely appeal. Id.Relief is available under Rule 60(b)(1) for mistakes of law or its application.
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Parks v. U.S. Life & Credit Corp., 677 F.2d 838, 839-40 (11th Cir. 1982) (per
curiam). A party may also file a motion for relief from a judgment or order based
upon “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party. . . .” F ED. R. C IV. P. 60(b)(3). “[O]nly 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.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1338
(5th Cir. 1978). To prove a fraud on the court, the plaintiff must show, by clear
and convincing evidence, an unconscionable plan designed to improperly influence
the court in its decision. Id. at 1338-39.
We review a judge’s decision not to recuse himself for an abuse of
discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (per
curiam) (citation omitted). A judge’s rulings in the same case generally cannot
serve as grounds for recusal. See United States v. Meester, 762 F.2d 867, 884
(11th Cir. 1985).
In order to state a claim under 42 U.S.C. § 1983, the defendants must have
acted “under color of state law.” This requirement excludes merely private
conduct. Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,
1277 (11th Cir. 2003). We recognize three primary tests to determine whether a
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private party acted “under color of state law”: “(1) the public function test; (2) the
state compulsion test; and (3) the nexus/joint action test.” Id.The public function test limits state action to instances where private
actors are performing functions traditionally the exclusive prerogative
of the state. The state compulsion test limits state action to instances
where the government has coerced or at least significantly encouraged
the action alleged to violate the Constitution. The nexus/joint action
test applies where the state has so far insinuated itself into a position
of interdependence with the [private party] that it was a joint
participant in the enterprise. We must determine on a case-by-case
basis whether sufficient state action is present from a non-state actor
(defendant) to sustain a section 1983 claim.
Id. (internal quotation marks and citations omitted).
Here, the Johnsons’ conclusory allegations that the defendants conspired
with a Florida judge were not enough to transform the defendants into state actors.
Thus, the district court did not mistake the law or its application. Furthermore, the
Johnsons failed to allege any activities in the district court that would constitute
fraud or misconduct. Therefore, the district court did not abuse its discretion in
denying the Johnsons’ motion for post-judgment relief.
The Johnsons’ arguments regarding the dismissal of their civil rights
complaint are not properly before us. Review of a Rule 60(b) motion cannot be
used to review the underlying judgment, nor can the Johnsons now use their 60(b)
motion as a substitute for a proper appeal.
Lastly, the Johnsons failed to amend their notice of appeal to include the
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order denying their motion for the district court judge to recuse himself.
Accordingly, we lack jurisdiction to consider this order on appeal. F ED. R. A PP. P.
3; see Green v. Union Foundry Co., 281 F.3d 1229, 1233 (11th Cir.2002)
(declining to hear the appellant’s second post-judgment motion because the
appellate “failed to either amend his original notice of appeal or file a separate
appeal from the district court's denial of his second post-judgment motion, and
therefore, [appellant had] not properly perfected an appeal from that order”).
Upon consideration of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm.
AFFIRMED.
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