Terry Colley v. Dr. Dandan, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-30832
Summary Calendar

TERRY J. COLLEY,

Plaintiff-Appellant

v.

DR. DANDAN; ZITA GUERRERO; WILLIE VASQUEZ; L. PARKER; M.
LOFSTROM; CHARLES T. TEXADA; HEATHER FALGOUT; UNITED
STATES OF AMERICA, on behalf of Federal Bureau of Prisons, on behalf of
United States Penitentiary Pollock,

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:16-CV-1631

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:
*

Terry J. Colley, federal prisoner # 45043-019, appeals the denial of his
Federal Rule of Civil Procedure 60 motions for relief from the judgment that
dismissed his complaint raising claims of medical malpractice and deliberate
indifference to his serious medical needs under Bivens v. Six Unknown Federal

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 18, 2020

Lyle W. Cayce
Clerk
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No. 18-30832
2
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Colley’s complaint
arose from a sports-related injury that occurred during his incarceration. He
also filed an administrative complaint, pursuant to the Federal Tort Claims
Act (FTCA) with the Bureau of Prisons (BOP) based on the same underlying
injury. While his lawsuit was pending, Colley settled his FTCA administrative
claim with an attorney representing the BOP and agreed to dismiss his
pending lawsuit. On appeal, he argues that the district court lacked
jurisdiction to dismiss his lawsuit and that BOP counsel and defense counsel
in his federal case committed fraud and fraud upon the court, primarily
alleging that he was deceived into believing that he was dismissing only his
FTCA claims and not his Bivens claim when he settled with the BOP and that
his signature on a joint stipulation to dismiss the federal case was forged.
We review the denial of relief under Rule 60(b)(4) de novo. Carter v.
Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998). Colley has not shown that the
district court lacked subject matter or personal jurisdiction or that it “acted in
a manner inconsistent with due process of law.” Id. at 1006. Thus, he shows
no error in connection with the denial of his Rule 60(b)(4) motion. See id.
Likewise, Colley has not shown that the district court abused its
discretion by denying his Rule 60 motion alleging fraud. See McCorvey v. Hill,
385 F.3d 846, 848 (5th Cir. 2004). In particular, we conclude that Colley has
not supported his fraud or fraud upon the court allegations, including his
forgery allegations, with clear and convincing evidence. See Longden v.
Sunderman, 979 F.2d 1095, 1103 (5th Cir. 1992); F
ED. R. CIV. P. 60(b)(3); FED.
R. CIV. P. 60(d)(3). The record reflects that he settled his FTCA claims with
the BOP for a negotiated amount and, in exchange, he agreed to dismiss his
pending lawsuit in its entirety.
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No. 18-30832
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To the extent that Colley contends that the district court erred by failing
to provide sufficient reasons and citation to legal authority when denying the
Rule 60 motions, that argument is meritless. See Jenkens & Gilchrist v. Groia
& Co., 542 F.3d 114, 118 (5th Cir. 2008); see also Provident Life & Accident Ins.
Co. v. Goel, 274 F.3d 984, 998-99 (5th Cir. 2001). Finally, Colley has not
established that the district court erred by denying his motion for an
evidentiary hearing inasmuch as the district court had sufficient written
evidence to render its decision. See McCorvey, 385 F.3d at 848, 8 50.
The judgment of the district court is AFFIRMED.

Case: 18-30832 Document: 00515350163 Page: 3 Date Filed: 03/18/2020