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Zellmer v. Constantine

United States District Court, W.D. Washington, Seattle

January 30, 2015

JOEL M. ZELLMER, Plaintiff,
DOW CONSTANTINE, et al., Defendants.


MARSHA J. PECHMAN, Chief District Judge.

THIS MATTER comes before the Court on Defendants King County Department of Adult and Juvenile Detention corrections officers' Objections (Dkt. No. 117) to the Report and Recommendation of United States Magistrate Judge James P. Donohue (Dkt. No. 111). Having considered the Report and Recommendation, Defendants' Objections, and all related papers, the Court ADOPTS the Report and Recommendation. Officer Tomlin's motion for summary judgment (Dkt. No. 83) is DENIED. Plaintiff's motion to vacate (Dkt. No. 105) is GRANTED, and this Court's December 13, 2011 Order (Dkt. No. 63) is VACATED as to Sergeant Stowers, Officer Potts, Officer Lofnik, and Officer Colbert. Plaintiff's request to file an amended complaint is DENIED, but Plaintiff is GRANTED leave to file, within 30 days of the date of this order, a motion to amend that is accompanied by a proposed amended complaint.


Defendants raise three objections to the portion of Judge Donohue's Report and Recommendation finding fraud on the court and recommending that the previously entered judgment be vacated: (1) there is no clear and convincing evidence that the officers intended to deceive the Court by submitting false declarations; (2) documents showing that the officers "might have been mistaken" about information provided in their declarations were already in the record at the time summary judgment was granted, and it was incumbent on Plaintiff to call the Court's attention to those documents; and (3) any errors regarding the timeline of events established by the declarations were immaterial because the Court granted summary judgment despite noting that the timeline was disputed, and the Ninth Circuit affirmed on broader grounds. (Dkt. No. 117.)


I. Legal Standard

Under Fed.R.Civ.P. 72, the Court must resolve de novo any part of the Magistrate Judge's Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. ยง 636(b)(1).

II. Defendants' Objections to the Report and Recommendation

A. Clear and Convincing Evidence of Fraud on the Court

Judge Donohue found clear and convincing evidence that the corrections officers were wrong when they testified that they were unavailable to escort Plaintiff back to his cell because they had been called away to participate in a shakedown. (Dkt. No. 111 at 20-21.) King County Correctional Facility log books and reports written on or about the day in question establish that the shakedown did not occur until 1:00 p.m., nearly two hours after Plaintiff's attorney meeting had concluded. (Id.) Defendants do not dispute the accuracy of this evidence. (Dkt. Nos. 111 at 21, 117.)

Defendants argued initially that the discrepancy between the evidence and the declarations submitted establishes at best "confusion" about the timeline of events rather than a scheme to deceive the Court, an argument Judge Donohue found to be "not even remotely persuasive." (Dkt. No. 111 at 22.) Judge Donohue noted that Defendants have possessed the log books and reports since the inception of this case, and that these logs directly contradict the declarations submitted by Defendants and their counsel. (Id.) Judge Donohue also noted that all four officers presented the same incorrect account, and that counsel made arguments based on those identical yet incorrect accounts. (Id.) Judge Donohue concluded that this "raises an inference of intentional actions, or at minimum, action with willful blindness or an inexcusable failure to investigate what actually happened." (Id.)

Defendants' Objections to the Report and Recommendation raise essentially the same arguments: the evidence shows that "some of the officers were mistaken about the timeline of events;" that "truthful witnesses often make innocent mistakes;" that similar inconsistencies are "frequently uncovered" in "virtually every case;" that competent and diligent attorneys "sometimes miss these kinds of inconsistencies when presenting their evidence;" and that there is no clear and convincing evidence of fraud here. (Dkt. No. 117 at 3.)

The Court agrees with Judge Donohue that there is clear and convincing evidence of fraud on the court. Defendants possessed the logs from the beginning of this case, but nevertheless chose to submit declarations and make arguments to the Court based on incorrect information directly contradicted by evidence in their possession. Each of the Defendants reviewed the information contained in his or her declaration before declaring under the penalty of perjury that the information was true and correct to the best of their knowledge; Sergeant Stowers personally made changes to her attorney-drafted declaration before declaring the information to be true. (Dkt. No. 42 at 1-3.) Four identical accounts were submitted with the intent that they present one coherent characterization of the events in question and with the intent that the ...

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