     Case: 13-30187       Document: 00512418734         Page: 1     Date Filed: 10/24/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 24, 2013
                                     No. 13-30187
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHARLES CARD,

                                                  Plaintiff-Appellant

v.

JOE KEFFER; JOEL ALEXANDRE; ANDRES MOLINA OSSERS; UNITED
STATES OF AMERICA,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CV-1195


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Charles Card, federal prisoner # 04573-000, appeals the order denying his
Federal Rule of Civil Procedure 60(b) motion for relief from the judgment that
granted the appellees’ motion for summary judgment and dismissed Card’s
complaint filed under Bivens v. Six Unknown Named Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). Card contends that his new evidence, X-rays
and an MRI report concerning his left and right knees, show that he had serious


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 13-30187

medical problems with both knees; that his left knee required surgery to correct
the problem; and that the defendants refused to treat his serious medical needs,
ignored his complaints, intentionally treated him incorrectly, disregarded his
serious medical needs, and committed fraud. He asserts that the new evidence
was available at the time of the final judgment but was not discovered until after
the final judgment. He maintains that the district court applied incorrect legal
standards because the district court did not consider the record as a whole, did
not consider whether the new evidence was material, and did not hold an
evidentiary hearing. Card also contends that the district court erred in not
addressing his claims of fraud.
      The district court did not abuse its discretion in holding that Card was not
entitled to relief under Rule 60(b)(2). See Bailey v. Cain, 609 F.3d 763, 767 (5th
Cir. 2010). The new 2012 medical records presented by Card did not exist at the
time of the entry of the district court’s judgment in November 2011. Rule
60(b)(2) does not provide relief for such evidence that did not exist before the
judgment was entered. See Johnson v. Offshore Express, Inc., 845 F.2d 1347,
1358 (5th Cir. 1988). Further, the new medical records do not contradict the
district court’s original determination that Card received adequate medical care
for his knee problems while he was incarcerated at United States Penitentiary
in Pollock, Louisiana (USP-Pollock). Therefore, the new evidence would not
have produced a different result if it had been present before the original
judgment. See Hesling v. CSX Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005).
      In addition, Card has not shown that he was entitled to relief under Rule
60(b)(3). Card’s conclusory and unsupported allegation of fraud does not show
by clear and convincing evidence that the defendants engaged in fraud or
misconduct that prevented him from fully and fairly presenting his case. See
Hesling, 396 F.3d at 641.     Therefore, the district court did not abuse its
discretion in implicitly denying relief under Rule 60(b)(3) based on Card’s claims
of fraud. See id.

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                                  No. 13-30187

      Further, Card has failed to show that he was entitled to relief under Rule
60(b)(6) based on extraordinary circumstances. See Hess v. Cockrell, 281 F.3d
212, 216 (5th Cir. 2002). He has not shown that extraordinary circumstances
exist where his claim for relief under Rule 60(b)(6) is based on his claims of fraud
under Rule 60(b)(3) and his claim of newly discovered evidence under Rule
60(b)(2). See Hesling, 396 F.3d at 643.
      Finally, Card has not shown that the district court abused its discretion
in not holding an evidentiary hearing. Because an evidentiary hearing was
unnecessary for the district court’s analysis of Card’s Rule 60(b) motion, the
district court did not abuse its discretion in denying his request for an
evidentiary hearing. See McCorvey v. Hill, 385 F.3d 846, 850 (5th Cir. 2004).
      Card’s motion for a default judgment lacks merit as the appellees’ brief
was timely filed. Therefore, his motion is denied.
      AFFIRMED; MOTION FOR DEFAULT JUDGMENT DENIED.




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