Jean Jocelyn Merilien v. Warden, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12415
Non-Argument Calendar
____________________
JEAN JOCELYN MERILIEN,
Plaintiff-Appellant,
versus
WARDEN,
Warden, Johnson State Prison,
MS. GRANISON,
Kitchen Manager, Johnson State Prison,
Defendants-Appellees.
____________________
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2 Opinion of the Court 21-12415
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 3:18-cv-00056-DHB-BKE
____________________
Before R OSENBAUM, J ILL PRYOR , and ANDERSON , Circuit Judges.
PER CURIAM:
Jean Jocelyn Merilien, proceeding pro se, appeals the denial
of his Federal Rule of Civil Procedure 60(b) motion to vacate the
district court’s grant of summary judgment in favor of the defend-
ants based on his failure to exhaust his administrative remedies, ar-
guing that the district court should have granted him relief on the
basis of newly discovered evidence.
We review denials of motions under Rule 60(b) for abuse of
discretion, except that review under Rule 60(b)(4) is de novo. Burke
v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001). Abuse of discretion
review is narrow, “addressing only the propriety of the denial or
grant of relief and does not raise issues in the underlying judgment
for review.” Maradiaga v. United States, 679 F.3d 1286, 1291 (11th
Cir. 2012) (quotation omitted). In order to prevail, “the losing
party . . . must demonstrate a justification for relief so compelling
that the district court was required to grant [the] motion.” Id. (quo-
tation omitted).
Arguments not raised before the district court and argu-
ments not raised in the initial brief are considered forfeited. Walker
v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994); United States v. Campbell,
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21-12415 Opinion of the Court 3
26 F.4th 860, 873 (11th Cir.) (en banc), cert. denied, 143 S. Ct. 95
(2022). We will not review forfeited issues unless the issue is ex-
traordinary enough to excuse forfeiture and:
(1) the issue involves a pure question of law and re-
fusal to consider it would result in a miscarriage of
justice; (2) the party lacked an opportunity to raise the
issue at the district court level; (3) the interest of sub-
stantial justice is at stake; (4) the proper resolution is
beyond any doubt; or (5) the issue presents significant
questions of general impact or of great public con-
cern.
Campbell, 26 F.4th at 872–73.
Rule 60(b) creates three relevant grounds under which a lit-
igant may move for relief from a final judgment. Rule 60(b)(2) per-
mits relief when new evidence has been discovered that could not,
with reasonable diligence, have been discovered in time to move
for a new trial. Fed. R. Civ. P. 60(b)(2). Rule 60(b)(4) permits relief
when the court lacked jurisdiction or denied the litigant due pro-
cess. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
(2010). Rule 60(b)(6) permits relief in extraordinary circumstances
not captured by the other Rule 60(b) categories. Kemp v. United
States, 142 S. Ct. 1856, 1861 (2022).
To be entitled to relief under Rule 60(b)(2), the movant must
show that: (1) the evidence is newly discovered; (2) they exercised
due diligence in discovering it; (3) the evidence is not cumulative
or merely impeaching; (4) the evidence is material; and (5) with the
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4 Opinion of the Court 21-12415
new evidence the outcome would probably be different. Waddell
v. Hendry Cnty. Sheriff’s Off., 329 F.3d 1300, 1309 (11th Cir. 2003).
These requirements must be strictly satisfied. Id. For instance, a
party has not exercised due diligence when they seek to vacate on
the basis of new evidence from a witness whom they knew of but
did not seek to depose before summary judgment. Id. at 1310.
We may recharacterize a pro se litigant’s argument in order
to match the rule framework to the substance of the argument.
Castro v. United States, 540 U.S. 375, 381–82 (2003).
We may affirm the district court on any ground supported
by the record. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th
Cir. 2012).
Here, as an initial matter, Merilien’s issues not raised before
the district court are forfeited. Arguments he only raised in his re-
ply brief are likewise forfeited. Merilien’s issues are not so extraor-
dinary as to justify excusing his forfeiture, so we need not consider
the forfeited arguments.
We construe Merilien’s argument under Rule 60(b)(2) be-
cause he asserts that the state court clerk correspondence is newly
discovered evidence. Although he claims that his argument falls
under Rules 60(b)(4) and 60(b)(6), those Rules do not correspond
to the substance of his argument. Even if his argument were cor-
rect, it would not show a lack of jurisdiction or denial of due pro-
cess, so Rule 60(b)(4) is inapposite. Further, because Rule 60(b)(2)
captures the argument’s substance, Rule 60(b)(6) is inapposite.
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21-12415 Opinion of the Court 5
Under Rule 60(b)(2), Merilien did not exercise due diligence
in discovering the state court clerk’s evidence because the clerk
would have known when his filings were received at the time De-
fendants raised the exhaustion issue in their motion for summary
judgment, but Merilien did not seek the clerk’s evidence until after
summary judgment was granted and his first motion to vacate was
denied. Because Merilien did not exercise due diligence, the district
court did not abuse its discretion in denying his motion. While the
district court did not base its denial on failure to exercise due dili-
gence, we may affirm on any ground supported by the record.
AFFIRMED.1
1 All pending motion are DENIED.
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