     Case: 10-11089     Document: 00511534546         Page: 1     Date Filed: 07/08/2011




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

                                                                            FILED
                                                                            July 8, 2011
                                     No. 10-11089
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT SOLIS,

                                                  Plaintiff - Appellant

v.

DOUG DRETKE; TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER;
DANNY HORTON; JAMES D MOONEYHAM; NFN REGOUBY; CLYDE
HARGROVE; JOHN JADNIK; DAVID POTTER,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:06-CV-148


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Robert Solis, Texas prisoner # 1129261, seeks leave to proceed in forma
pauperis (IFP) on appeal from the district court’s denial of his Rule 60(b) motion
for relief from judgment.          By moving for leave to proceed IFP, Solis is
challenging the district court’s certification that his appeal is not taken in good




       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-11089

faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 28 U.S.C. § 1915(a)(3).
       Solis argues that the district court abused its discretion by denying his
motion for relief from judgment. He maintains the motion and evidence he
submitted showed he was entitled to relief because the defendants made
misrepresentations to the court, he provided newly discovered evidence, and he
demonstrated the existence of exceptional circumstances. He contends that the
district court did not consider the evidence he submitted with the motion and
that the evidence he submitted contradicted findings the district court made in
its order dismissing the complaint. Solis asserts that he exercised diligence in
discovering the new evidence and that he could not have presented the evidence
of his injuries earlier because the defendants did not treat the injuries.
       Under Rule 60(b)(3), a district court may relieve a party from a final
judgment for fraud, misrepresentation, or other misconduct of an adverse party.
Fed. R. Civ. P. 60(b)(3). “A party making a Rule 60(b)(3) motion must establish:
(1) that the adverse party engaged in fraud or other misconduct, and (2) that this
misconduct prevented the moving party from fully and fairly presenting his
case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir. 2005) (citation
omitted). The movant must show that the opposing party engaged in misconduct
by clear and convincing evidence. Id.
       Solis alleged that the Martinez1 report contained three statements that
were misrepresentations: (1) that he refused medical treatment for his foot on
September 14, 2004; (2) that his doctor’s appointment on September 7, 2004, was
rescheduled for September 8, 2004; and (3) that he was provided medical
treatment on September 6, 2004, when he was actually seen only by a nurse, not
by a doctor licensed to practice podiatry. The evidence Solis submitted in



      1
        Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Parker v. Carpenter, 978
F.2d 190, 192 n.2 (5th Cir. 1992).

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support of his claim that he did not refuse treatment merely showed the
existence of a factual dispute, and was insufficient to show by clear and
convincing evidence that the Martinez report was fraudulent or contained
misrepresentations. See Diaz v. Methodist Hosp., 46 F.3d 492, 497 (5th Cir.
1995).
      There was an apparently inaccurate entry in the medical records
submitted with the Martinez report indicating that Solis’s doctor’s appointment
on September 7, 2004, was rescheduled for September 8, 2004. However, the
inaccuracy in the medical records was not used by the defendants to procure a
favorable judgment and was not relied upon by the district court. Solis has not
shown that the Martinez report was fraudulent or contained misrepresentations
because it included an inaccurate entry in the medical reports. See Ginther v.
O’Connell (In re Ginther), 791 F.2d 1151, 1153-54 (5th Cir. 1986).
      The medical records indicated that Solis was seen by a nurse, not a doctor,
on September 6, 2004, and the district court specifically found that Solis was
seen by a nurse on September 6, 2004. Accordingly, any possible implication
that Solis was seen by a doctor was not used by the defendants or relied upon by
the district court. Solis has, therefore, not shown that the Martinez report was
fraudulent or contained misrepresentations because it implied that he was seen
by a doctor on September 6, 2004. See id. Solis has not shown that he was
entitled to relief under Rule 60(b)(3).
      Rule 60(b)(2) allows for relief from a final judgment based on “newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P.
60(b)(2). “Under Rule 60(b)(2), to succeed on a motion for relief from judgment
based on newly discovered evidence, our law provides that a movant must
demonstrate: (1) that it exercised due diligence in obtaining the information; and
(2) that the evidence is material and controlling and clearly would have produced



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a different result if present before the original judgment.” Hesling, 396 F.3d at
639 (quotation marks, brackets, and citation omitted).
      The newly discovered evidence upon which Solis relied consisted of Harris
County Sheriff’s Office medical records from January and March of 1999. While
Solis’s new medical records showed that he had a diagnosable foot injury in
2009, nothing in the those records showed that he was not given proper medical
treatment after he was injured on September 6, 2004. The new medical records
contradicted the district court’s finding that Solis did not have a substantial foot
injury.   The district court’s primary findings, though, were that Solis’s
allegations amounted to a disagreement with the medical treatment he received
and that Solis had not shown that any delay in receiving medical care caused
him substantial harm. Nothing in the new medical records contradicted those
findings. As the new medical records did not contradict the district court’s
central findings, Solis failed to show that the new medical records would have
clearly produced a different result, and he has, therefore, not shown that he was
entitled to relief under Rule 60(b)(2). See Hesling, 396 F.3d at 640-41.
      Rule 60(b)(6) is a catchall provision allowing for the granting of relief from
a judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(2).
Relief under Rule 60(b)(6) is reserved for “extraordinary circumstances.”
Hernandez v. Thaler, 630 F.3d 420, 429 (5th Cir. 2011).
      Solis’s claim for relief under Rule 60(b)(6) was based solely upon his claims
of fraud and misrepresentation under Rule 60(b)(3) and of newly discovered
evidence under Rule 60(b)(2). This claim fails because “[t]he reason for relief set
forth under 60(b)(6) cannot be the reason for relief sought under another
subsection of 60(b).” Hesling, 396 F.3d at 643.
      The district court denied Solis’s motion for relief from judgment by relying
on its order dismissing the complaint, without discussing the argument and
evidence set forth in the motion for relief from judgment. This, however, is
immaterial because Solis’s Rule 60(b) motion was without merit, and we may

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affirm the ruling of the district court for any reason supported by the record. See
Armour v. Knowles, 512 F.3d 147, 152 & n.4 (5th Cir. 2007).
      Solis’s appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied, and the
appeal is dismissed. See Baugh, 117 F.3d at 202; 5th Cir. R. 42.2.
      Solis is cautioned that the dismissal of this appeal as frivolous and the
district court’s dismissal of the complaint as frivolous both count as strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). He is cautioned that if he accumulates three strikes under Section
1915(g), he will be unable to proceed in forma pauperis in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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