Robert Jw McCleland v. Rick Raemisch; Renae Jordan; Susan Tiona; Deborah Borrego; Joanne McGrew; Dayna Johnson

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ROBERT JW MCCLELAND,
Plaintiff - Appellant,
v.
RICK RAEMISCH; RENAE JORDAN;
SUSAN TIONA; DEBORAH BORREGO;
JOANNE MCGREW; DAYNA
JOHNSON,
Defendants - Appellees.
No. 21-1303
(D.C. No. 1:18-CV-00233-PAB-NYW)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and CARSON, Circuit Judges.
_________________________________
Plaintiff Robert JW McCleland, a pro se inmate, asserted Eighth Amendment
violations under 42 U.S.C. § 1983 against employees of the Colorado Department of
Corrections (“CDOC”). His claims were premised on an alleged delay in treatment
for hepatitis C. The district court granted summary judgment in favor of the
defendants, and we affirmed in McCleland v. Raemisch, No. 20-1390, 2021 WL
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit
May 20, 2022
Christopher M. Wolpert
Clerk of Court
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4469947 (10th Cir. Sept. 30, 2021) (“McCleland I”), cert. denied, 142 S. Ct. 1155
(2022). While that appeal was pending, Mr. McCleland filed a motion for relief from
judgment under Fed. R. Civ. P. 60(b), which the district court denied. He now
appeals that denial. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Before his incarceration, Mr. McCleland contracted hepatitis C virus (“HCV”),
which is primarily associated with liver damage. Mr. McCleland claims that while in
prison he experienced non-liver manifestations of HCV and therefore requested an
antiviral therapy. CDOC policy, however, mandated therapy only when an inmate’s
blood test indicated a particular level of liver scarring. Mr. McCleland’s blood tests
between June 2016 and December 2017 yielded results that did not require the
therapy under that policy, so the defendants denied his request.
Mr. McCleland filed his lawsuit in February 2018, alleging the defendants
were deliberately indifferent to his medical needs in violation of the Eighth
Amendment. In July 2018, the CDOC revised its policy, lowering the threshold to
qualify for the antiviral therapy. Based on a more recent blood test, Mr. McCleland
qualified for the treatment, which he completed three months later. Lab tests in
January 2019 showed he was clear of HCV.
The CDOC policy change occurred five months after Mr. McCleland filed his
lawsuit, so the focus of his claims shifted to whether the alleged delay in
administering the therapy caused actionable injury. During discovery, he filed three
motions for appointment of counsel, each stressing the need for expert medical
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testimony. The district court denied those motions. Mr. McCleland later moved for
appointment of an independent expert witness under Fed. R. Evid. 706. The court
denied that motion, concluding Mr. McCleland sought an expert not to assist the
court but to support his view of the evidence. He then filed a fourth motion for
appointment of counsel, which again was denied.
The defendants filed a summary judgment motion relying on expert
declarations. The former CDOC chief medical officer averred that while there was at
best an association between HCV and non-liver disease, no studies had established
causation. Another expert averred that lab tests conducted on Mr. McCleland were
inconclusive or unremarkable for the conditions he claimed were caused by the delay
in his HCV treatment. The expert acknowledged, however, that in October 2019,
Mr. McCleland had been diagnosed with chronic kidney disease of unknown cause.
Mr. McCleland responded with citations to medical literature indicating a causal link
between HCV and kidney disease. He also submitted two expert declarations that
had been filed in other lawsuits.
The magistrate judge recommended granting the defendants’ motion. See Fed.
R. Civ. P. 72(b)(1). She declined to consider Mr. McCleland’s medical literature
because he offered no expert to interpret it and he lacked the expertise to do so
himself. She thus deemed the defendants’ evidence undisputed as to whether the
delay caused any injury. Mr. McCleland objected to the recommendation under
Fed. R. Civ. P. 72(b)(2) on the ground that his lack of expert evidence should not be
held against him given his motions for the appointment of counsel and an
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independent expert. The district court accepted the recommendation over
Mr. McCleland’s objection, see Fed. R. Civ. P. 72(b)(3), and Mr. McCleland
appealed.
Mr. McCleland argued on appeal that the district court erred in granting
summary judgment and that it should have appointed counsel and an expert. We
rejected these arguments, holding: “The district court did not abuse its discretion
when it refused to appoint counsel or an expert. In turn, it properly granted summary
judgment to defendants because [Mr.] McCleland lacked evidence necessary to prove
the causation element of his case.” McCleland I, 2021 WL 4469947, at *6.
During the pendency of Mr. McCleland’s appeal, he filed a motion in the
district court for relief from judgment under Fed. R. Civ. P. 60(b). First, he argued
that a kidney biopsy revealed new evidence concerning the connection between his
kidney disease and HCV, and he therefore sought relief under Rule 60(b)(2). Second,
he sought relief under Rule 60(b)(3) based on his assertions that (1) the defendants
misrepresented the 2016 medical community’s understanding when they asserted no
causative link had been established between HCV and non-liver disease, and
(2) Mr. McCleland’s lab tests could not have been used to determine causation. With
respect to both requests for relief, Mr. McCleland asked the district court to take
judicial notice of additional factual conclusions he gleaned from medical texts.
Finally, he renewed his request for the appointment of an expert.
The defendants did not respond to Mr. McCleland’s motion, but the district
court nevertheless held Mr. McCleland had not carried his burden under Rule 60(b).
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The district court rejected Mr. McCleland’s Rule 60(b)(2) and 60(b)(3) requests
because they depended on the court taking judicial notice of various medical texts,
which the court refused to do. The court also rejected his request for the appointment
of an expert on the ground that it was simply a renewed argument the district court
had already rejected. This appeal followed.
II. DISCUSSION
“We review the district court’s denial of a Rule 60(b) motion for abuse of
discretion.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000).
Although a district court has discretion to grant relief as justice requires, “such relief
is extraordinary and may only be granted in exceptional circumstances.” Id. (internal
quotation marks omitted). We hold that the circumstances of Mr. McCleland’s case
do not warrant the extraordinary relief contemplated by Rule 60(b).
A. Rule 60(b)(2) Request for Relief
Mr. McCleland argues the district court abused its discretion when it denied
his motion based on newly discovered evidence under Rule 60(b)(2). To prevail on
such a motion, the movant must show that (1) the evidence is newly discovered,
(2) the movant was diligent in discovering the evidence, (3) the evidence is not
merely cumulative or impeaching, (4) the evidence would have been material, and
(5) the evidence probably would have produced a different a result. Wolfgang v.
Mid-Am. Motorsports, Inc., 111 F.3d 1515, 1529 (10th Cir. 1997).
Mr. McCleland’s requested relief required the district court to take judicial
notice of purported facts that he says flow from the results of his kidney biopsy.
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Rule 201 of the Federal Rules of Evidence permits a court to take judicial notice of a
particular fact only if it is “not subject to reasonable dispute.” Fed. R. Evid. 201(b).
Mr. McCleland says in his opening brief that he asked the district court to take
judicial notice that: (1) his newly discovered biopsy results prove he has suffered
kidney disease; (2) medical literature shows that HCV causes specific types of kidney
damage; (3) it was common knowledge in the 2016 medical community that HCV
causes kidney damage; and (4) the 2016 medical community knew that HCV-
associated kidney damage was an objectively serious reason to treat HCV. The
district court declined to take judicial notice of these purported facts and therefore
denied relief. This was not an abuse of discretion, for two reasons.
First, the facts Mr. McCleland wishes the court to take judicial notice of are
very much in dispute. The defendants’ expert declarations, submitted in support of
their summary judgment motion, averred that no studies have proven HCV causes
non-liver disease and that Mr. McCleland’s lab tests were mostly inconclusive for
diseases he claimed were caused by delay in HCV treatment. See McCleland,
2021 WL 4469947, at *2. Mr. McCleland’s purported facts therefore do not qualify
as the type of facts of which a court may take judicial notice under Rule 201(b). See
United States v. Boyd, 289 F.3d 1254, 1258 (10th Cir. 2002) (“[T]ak[ing] judicial
notice of a fact whose application is in dispute . . . raises doubt as to whether the
parties received a fair hearing.” (internal quotation marks omitted)).
Second, in granting summary judgment, the district court held that
Mr. McCleland’s own interpretations of the medical evidence are insufficient because
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he lacks the necessary medical expertise. We affirmed and noted: “If
[Mr.] McCleland needs expert testimony to prove his claims—and he has never
argued otherwise—then his failure to present expert causation testimony at summary
judgment mandated judgment in defendants’ favor.” McCleland I, 2021 WL
4469947, at *3. Mr. McCleland still does not have an expert to interpret his newly
discovered evidence. Accordingly, Mr. McCleland’s biopsy results, together with the
medical facts and literature he wishes the court to take judicial notice of, would not
have produced a different result. See Wolfgang, 111 F.3d at 1529.
In short, we hold that the district court did not abuse its discretion in denying
relief based on newly discovered evidence under Rule 60(b)(2).
B. Rule 60(b)(3) Request for Relief
Mr. McCleland argues the district court erred in denying relief based on Rule
60(b)(3), which allows a court to relieve a party from a final judgment based on
“fraud . . . misrepresentation, or misconduct by an opposing party.” The party
relying on Rule 60(b)(3) “must, by adequate proof, clearly substantiate the claim of
fraud, misconduct or misrepresentation.” Zurich N. Am. v. Matrix Serv., Inc.,
426 F.3d 1281, 1290 (10th Cir. 2005). The movant must show that the adverse party
“acted with an intent to deceive or defraud the court, by means of a deliberately
planned and carefully executed scheme.” Yapp v. Excel Corp., 186 F.3d 1222, 1231
(10th Cir. 1999) (internal quotation marks omitted).
The district court did not abuse its discretion in denying Mr. McCleland’s
motion under Rule 60(b)(3). Mr. McCleland has not established the defendants acted
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with an intent to deceive or defraud by means of a deliberate plan and carefully
executed scheme. Id. at 1231. In addition, it appears that at the time the defendants
filed their summary judgment motion, the district court was fully aware of the
medical literature on which Mr. McCleland now relies in part for his Rule 60(b)(3)
request. See R. Vol. II at 49 (acknowledging that “some [medical] literature may link
chronic [HCV] to . . . non-liver . . . manifestations”).
C. Appointment of an Expert
Finally, Mr. McCleland argues the district court erred in failing to appoint an
expert under Fed. R. Evid. 706, “to help the court understand the medical facts that
Plaintiff presented in his [Rule] 60(b) motion.” Opening Br. at 13. We discern no
error. As we observed in McCleland I, we review Rule 706 rulings for an abuse of
discretion. 2021 WL 4469947, at *4 (citing Rachel v. Troutt, 820 F.3d 390, 397
(10th Cir. 2016)). Mr. McCleland argues the district court abused its discretion
because it held he needed a medical expert to present his facts, yet refused to appoint
an expert because his argument was not sufficiently complex. Mr. McCleland has
already presented this argument, and we rejected it. As we held:
[W]e see no incongruity. Rule 706 was not designed to fill in the gaps for a
party who cannot find or afford an expert. We assume the district court
could use that rule to solicit an independent second opinion in a case like
this . . . , but we hold it was not an abuse of discretion to decline to do so.
Id. at *5 (citing Rachel, 820 F.3d at 398). Nothing in Mr. McCleland’s Rule 60(b)
motion changes this analysis.
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III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order denying
Mr. McCleland’s motion for Rule 60(b) relief and denying his related request for the
appointment of an expert. We further deny Mr. McCleland’s motion for the
appointment of appellate counsel.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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