Rodrick Tolbert, as Personal Representative of the Estate of Torrence Tolbert v. City of Pontiac

*The Hon. Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0657n.06
Filed: August 4, 2005
No. 04-1196/2109
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RODRICK TOLBERT, as Personal
Representative of the Estate of Torrence
Tolbert; JOYCE TOLBERT; FRANK
TOLBERT; and KERRY TOLBERT,
Plaintiffs-Appellants,
v.
CITY OF PONTIAC; PONTIAC POLICE
DEPARTMENT; I. KERSHAW, Officer;
MAIN, Officer; and JANCZAREK, Officer,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges, and HOOD, * District
Judge.
PER CURIAM. The plaintiffs, relatives of Torrance Tolbert, filed this § 1983 action
against the City of Pontiac, its police department, and three individual police officers,
charging violations of the Eighth Amendment and raising various state law claims growing
out of Torrence Tolbert’s death. The plaintiffs contend that officers violated Tolbert’s federal
constitutional rights by failing to provide medical care while Tolbert was in custody and

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No. 04-1196/2109
Tolbert v. City of Pontiac
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violated state law by egregiously and arbitrarily exposing Tolbert to greater danger. The
district court granted the defendants’ motion for summary judgment when the plaintiffs
failed to produce any evidence that Tolbert had been in the custody of the police officers
or that the officers had violated Tolbert’s constitutional rights. The plaintiffs subsequently
filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6),
contending that their original attorney had been grossly inadequate in handling their case.
The district court held that Rule 60(b)(6) was inapplicable, treated the motion as one for
relief under 60(b)(1), and, after finding no “excusable neglect,” denied the motion.
The plaintiffs now appeal both those decisions. They have failed to produce any
evidence, however, to demonstrate that Tolbert was “in custody” or that Pontiac police
officers failed to render medical assistance to Tolbert. In fact, the first officer on the scene
called for an ambulance immediately upon learning that Tolbert was suffering from a
gunshot wound. The plaintiffs also failed to establish a legal basis that would have entitled
them to relief from judgment under Rule 60(b)(1) or (6).
Having had the benefit of oral argument, and having studied the record on appeal
and the briefs of the parties, we are not persuaded that the district court erred in dismissing
the complaint and in denying post-judgment relief under Rule 60(b). Because the reasons
why judgment should be entered for the defendants have been fully articulated by the
district court, the issuance of a detailed opinion by this court would be duplicative and
would serve no useful purpose. Accordingly, we AFFIRM the judgment of the district court

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No. 04-1196/2109
Tolbert v. City of Pontiac
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upon the reasoning set out by that court in its memorandum opinion and order filed
December 31, 2003, and its opinion and order filed on July 29, 2004.

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