                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 19a0573n.06

                                              No. 19-3096

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                            FILED
TERESA BERRY, Administrator of the Estate of                )                         Nov 14, 2019
Rhianna Filichia,                                           )                     DEBORAH S. HUNT, Clerk
                                                            )
          Plaintiff-Appellant,                              )
                                                                  ON APPEAL FROM THE UNITED
                                                            )
                                                                  STATES DISTRICT COURT FOR
                            v.                              )
                                                                  THE SOUTHERN DISTRICT OF
                                                            )
                                                                  OHIO
DELAWARE COUNTY SHERIFF’S OFFICE,                           )
                                                            )
          Defendant-Appellee.                               )
                                                            )


BEFORE: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.

          GRIFFIN, Circuit Judge.

          After her daughter died while in jail, Teresa Berry sued the Delaware County, Ohio

Sheriff’s Office for violating her daughter’s civil rights under 42 U.S.C. § 1983. This appeal

presents two issues: (1) whether the district court correctly granted summary judgment in favor of

defendant on Berry’s municipal liability claims and (2) whether the district court abused its

discretion in denying Berry’s motion to vacate the judgment. For the reasons stated below, we

affirm.

                                                    I.

                                                    A.

          Plaintiff, Teresa Berry, is the administratrix of the estate of her daughter, Rhianna Filichia.

Filichia suffered from diverticulosis, a condition in which pouches (diverticula) form in the walls
No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


of the intestines. She also suffered from chronic attacks of diverticulitis, which is when diverticula

become inflamed or infected.

        In 2013, Filichia was charged in Delaware County, Ohio for driving under the influence

and failing to stop. She pleaded guilty to those charges and was ordered to spend time in jail.

Filichia was permitted to serve the jail time during weekends.

        Filichia was scheduled to serve some of her remaining sentence on February 6 and 7, 2016,

but she failed to appear due to her diverticulitis. A warrant for her arrest was issued on February

9, 2016. Between February 6 and 21, 2016, Filichia went to her doctor and the hospital several

times due to pain caused by her diverticulitis.

        On February 20, 2016, Deputy Darren Mohnsen and Deputy Nathan Hysell went to

Filichia’s residence to execute a warrant for her arrest. Filichia’s boyfriend, James Egbert,

answered the door. Before Deputy Mohnsen had arrived, Filichia had told Egbert that she was in

pain. Egbert told the deputies about Filichia’s medical condition and that she was in pain. He also

asked the deputies if Filichia could go to the emergency room rather than jail. The deputies,

however, said that Filichia had to go to jail, but that there was a nurse at the jail.

        At the jail’s intake, a licensed practical nurse evaluated Filichia for confinement. The

licensed practical nurse determined that Filichia was fit for confinement. Roughly thirty-five hours

later, Filichia became unresponsive. Despite efforts to save her life, Filichia died.

                                                  B.

        Plaintiff sued the Delaware County Sheriff’s Office and six John Doe Officers from that

office. She alleged, among other things, that the Sheriff’s Office violated the Eighth Amendment

and 42 U.S.C. § 1983 by not giving adequate medical training to its employees and, as a result,

faced municipal liability pursuant to Monell v. Department of Social Services of City of New York,

436 U.S. 658 (1978). She subsequently amended her complaint; she dismissed the John Doe


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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


Officers, but added Correctional Healthcare Companies, Inc.—the company that provided medical

services at the jail—as a defendant.

       The Sheriff’s Office moved for summary judgment. It argued that the district court should

grant its motion for multiple reasons, including (1) the Sheriff’s Office was not a suable party and

(2) no reasonable juror could find for plaintiff on her failure-to-train claim. In response, plaintiff

moved to substitute Delaware County Sheriff Russell L. Martin for the Delaware County Sheriff’s

Office. The district court granted plaintiff’s substitution motion on January 23, 2019. The court

directed plaintiff to “file her Second Amended Complaint within SEVEN DAYS of this Opinion

and Order.” Moreover, the district court warned that “Failure to comply with this Opinion and

Order will result in the Amended Complaint being dismissed, without additional notice, for

naming a party that is not sui juris.”

       On February 1, 2019—two days after the amendment deadline—the district court granted

the Sheriff’s Office’s summary judgment motion and dismissed plaintiff’s complaint with

prejudice. It reasoned that although it had granted plaintiff’s motion to substitute a suable party

into the lawsuit, plaintiff failed to do so.     Alternatively, the district court determined any

amendment would be futile because plaintiff failed to prove that there were any genuine disputes

of material fact that showed the Sheriff was liable under Monell. Plaintiff moved to vacate the

judgment, which the district court denied. Plaintiff timely appeals.

                                                 II.

       The main issue on appeal is whether the district court correctly granted summary judgment

in the Sheriff’s Office’s favor. “We review de novo a district court’s decision on [a] motion[] for

summary judgment.” Burnette Foods Inc. v. U.S. Dep’t of Agric., 920 F.3d 461, 466 (6th Cir.

2019) (citation omitted)). “Summary judgment is proper ‘if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”


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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


Id. at 466–67 (quoting Fed. R. Civ. P. 56(a)). The moving party must first show that the

nonmoving party failed to “establish the existence of an element essential to . . . [the nonmoving]

party’s case, and on which . . . [the nonmoving] party will bear the burden of proof at trial.”

Bormuth v. Cty. of Jackson, 870 F.3d 494, 503 (6th Cir. 2017) (en banc) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 317 (1986)). “Once the moving party has met the initial burden of showing

the absence of a genuine dispute of material fact, the non-moving party must then ‘come forward

with specific facts showing that there is a genuine issue for trial.’” Baker v. City of Trenton,

936 F.3d 523, 529 (6th Cir. 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)). “The non-moving party must ‘do more than simply show that there is

some metaphysical doubt as to the material facts.’” Id. at 529 (quoting Matsushita, 475 U.S. at

586). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

at 529 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

                                                  A.

       As an initial matter, we conclude that the district court correctly granted summary

judgment in favor of the Sheriff’s Office because plaintiff failed to name a suable party. Berry

does not contest that decision, and she has not directed us to any record evidence that suggests she

has included a suable defendant in her lawsuit.

                                                  B.

       The crux of this appeal is plaintiff’s attack on the district court’s alternative reason for

granting summary judgment in the Sheriff’s Office’s favor—that plaintiff failed to establish a

“failure-to-train” claim under Monell. As set forth below, we agree with the district court that this

alternative path additionally supports its grant of summary judgment.




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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


       “[U]nder § 1983, local governments are responsible only for their own illegal acts. They

are not vicariously liable under § 1983 for their employees’ actions.” D’Ambrosio v. Marino,

747 F.3d 378, 386 (6th Cir. 2014) (emphasis added) (quoting Connick v. Thompson, 563 U.S. 51,

60 (2011)). “Instead, a municipality is liable under § 1983 only if the challenged conduct occurs

pursuant to a municipality’s ‘official policy,’ such that the municipality’s promulgation or

adoption of the policy can be said to have ‘cause[d]’ one of its employees to violate the plaintiff’s

constitutional rights.”1 Id. (quoting Monell, 436 U.S. at 692).

       “Official municipal policy includes the decisions of a government’s lawmakers, the acts of

its policymaking officials, and practices so persistent and widespread as to practically have the

force of law.” Id. (quoting Connick, 563 U.S. at 61). To show the existence of a municipal policy,

a plaintiff must properly allege at least one of the following:

       (1) the existence of an illegal official policy or legislative enactment;

       (2) that an official with final decision making authority ratified illegal actions;

       (3) the existence of a policy of inadequate training or supervision; or

       (4) the existence of a custom of tolerance [of] or acquiescence [to] federal rights
           violations.




       1
         In Winkler v. Madison County, however, we recognized that it is an unsettled question
whether finding a municipality liable under § 1983 requires proof that an individual defendant
committed a constitutional violation. 893 F.3d 877, 899–901 (6th Cir. 2018). The district court
acknowledged the unsettled question and assumed either (1) Deputy Mohnsen had committed a
constitutional violation by being deliberately indifferent to Filichia’s serious medical needs or
(2) plaintiff had established a constitutional violation, but did not need to establish that an
individual municipal employee had committed a constitutional violation. Because this question is
unsettled and answering it is not necessary to resolve this appeal, we assume—without deciding—
that plaintiff has made whatever showings are necessary on this issue and resolve the appeal on
other grounds.



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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


D’Ambrosio, 747 F.3d at 386 (citation omitted). Plaintiff relies solely on the inadequate training

method.

       Inadequate training can be the basis for a § 1983 municipal liability claim when it “amounts

to deliberate indifference to the rights of persons with whom the police come into contact.” Roell

v. Hamilton Cty., Ohio/Hamilton Cty. Bd. of Cty. Comm’rs, 870 F.3d 471, 487 (6th Cir. 2017).

But “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim

turns on a failure to train.” Connick, 563 U.S. at 61. To succeed on an inadequate training claim,

a plaintiff must prove: “(1) that a training program is inadequate to the tasks that the officers must

perform; (2) that the inadequacy is the result of the [municipality’s] deliberate indifference; and

(3) that the inadequacy is closely related to or actually caused the plaintiff’s injury.” Roell, 870

F.3d at 487 (quoting Brown v. Chapman, 814 F.3d 447, 463 (6th Cir. 2016)). Plaintiff fails to

show a genuine dispute of material fact on all three requirements.

                                                  1.

       Plaintiff argues that the Sheriff’s Office inadequately trained its officers “to identify

individuals in questionable health.” That is her contention because the only medical training the

officers receive concerns CPR and first aid. We recently rejected an equivalent contention in

Winkler v. Madison County and do so again here.

       The plaintiff in Winkler argued that “there [wa]s no evidence that any jailer received

training on anything other than basic first aid and CPR.” 893 F.3d at 903. But we rejected that

contention because the Winkler plaintiff “presented no proof to show that this inadequacy resulted

from deliberate indifference.” Id. at 902. That is, there was “no basis to conclude that the County

exhibited deliberate indifference by failing to provide additional medical training to jail personnel”

beyond CPR and first aid training. Id. at 903.




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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


        So too here. Plaintiff concedes that the officers in this case, like the officers in Winkler,

had training on CPR and first aid. And she concedes that “Deputy Mohnsen acknowledge[d] that

he believed Filichia to be in questionable health when he delivered her to the jail during his

discussions with the [licensed practical nurse].” In other words, plaintiff concedes that Deputy

Mohnsen did precisely what he should have done—he perceived that something might be

medically wrong with Filichia, and he conveyed that to a medical professional.2 Plaintiff has

identified no record evidence that disputes (1) that Deputy Mohnsen had undergone first aid and

CPR training or (2) that he perceived Filichia to be in questionable health and conveyed his

perception to a medical professional.

        Shadrick v. Hopkins County, Kentucky, 805 F.3d 724 (6th Cir. 2015), is of no help to

plaintiff. There, a county contracted with “a private, for-profit corporation, to provide medical

services to inmates” at a detention center. Id. at 728–29. We determined that the private medical

services provider’s training program was inadequate. Id. at 740 (citation omitted). But Shadrick’s

inadequacy-of-training analysis concerned the adequacy of training provided to licensed practical

nurses, not police officers. Id. at 740–42. The training that officers receive (when they are not the

primary medical care providers) and the training that licensed practical nurses receive (when they

are the primary medical care providers), along with the tasks they must perform, are meaningfully

different.




        2
         In similar circumstances, we have determined that police officers are entitled to rely on
assessments of medical professionals regarding whether an inmate should be transported to a
hospital. See, e.g., Spears v. Ruth, 589 F.3d 249, 255 (6th Cir. 2009) (“Although [the police
officer] admits that [the inmate] told him that he had smoked crack cocaine, [the police officer]
was entitled to rely on the EMTs’ and the jail nurse’s medical assessments that [the inmate] did
not need to be transported to the hospital.”).



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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


       Accordingly, plaintiff has not created a genuine dispute of material fact regarding whether

Deputy Mohnsen’s training was inadequate to the tasks he had to perform.

                                                  2.

       There are two ways to prove that the inadequacy of a training program is the result of a

municipality’s deliberate indifference.      A plaintiff may prove (1) a “pattern of similar

constitutional violations by untrained employees” or (2) “‘a single violation of federal rights,

accompanied by a showing that [the municipality] has failed to train its employees to handle

recurring situations presenting an obvious potential’ for a constitutional violation.” Id. at 738–39

(citations omitted). We address each method in turn.

                                                  a.

       “A pattern of similar constitutional violations by untrained employees is ‘ordinarily

necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563

U.S. at 62 (citation omitted).     Such a pattern is ordinarily necessary because “[u]ntil the

[municipality] had notice of persistent misconduct, it did not have ‘the opportunity to conform to

constitutional dictates,’ nor could its inaction have caused the deprivation of [plaintiff’s]

constitutional rights.” D’Ambrosio, 747 F.3d at 388 (quoting Connick, 563 U.S. at 63 n.7).

Moreover, “contemporaneous or subsequent conduct cannot establish a pattern of violations that

would provide ‘notice to the [municipality] and the opportunity to conform to constitutional

dictates.” Connick, 563 U.S. at 63 n.7.

       Additionally, the similarity must be particularized.       In Connick, the Supreme Court

connected the notice requirement not merely to the generalized type of constitutional violation in

dispute (Brady violations), but rather to the specific way that the constitutional violation happened.

The Supreme Court determined that four prior Brady violations did not place the district attorney’s

office on notice that its “training was inadequate with respect to the sort of Brady violation at


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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


issue” in the case because “[n]one of [the prior Brady violations] involved failure to disclose blood

evidence, a crime lab report, or physical or scientific evidence of any kind.” Connick, 563 U.S. at

62–63. In short, the prior examples of wrongdoing must violate the same constitutional rights and

violate them in the same way. See D’Ambrosio, 747 F.3d at 388 (noting that three prior improper

trial comments were insufficient to provide notice of Brady violations).

       Plaintiff asserts that “another inmate . . . died the same night as Filichia” and because of

that death, she concludes that “[t]here is evidence supporting [a] pattern, which went unmentioned

by the trial court.” To support that contention, plaintiff cites the deposition transcript of Deputy

Rachel O’Brien. O’Brien testified—without the highest degree of firmness—that another inmate

did die:

       Plaintiff’s Attorney: Has anyone other than Rhianna Filichia died at the Delaware
                             County Jail?

                   O’Brien: Yeah.

       Plaintiff’s Attorney: Who?

                   O’Brien: I don’t know. I know Tye [Downard] did.

       Plaintiff’s Attorney: And do you know the circumstances of his death?

                   O’Brien: All I -- I wasn’t there on shift that day.

       Plaintiff’s Attorney: Did he die the day before or the day after Rhianna?

                   O’Brien: I think it was the same night, but I had gone home.

       Plaintiff’s Attorney: So he was there while you were on shift?

                   O’Brien: Yes.

       Plaintiff’s Attorney: But he was alive?

                   O’Brien: I don’t know.




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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


       Plaintiff’s Attorney: Well, were you not responsible for watching him? Was he not
                             on medical watch?

                   O’Brien: I was in booking that day.

       This testimony is insufficient to establish a pattern of similar constitutional violations.

First, if the other inmate died the same night as Filichia, O’Brien’s testimony is, at best, evidence

of contemporaneous conduct, which does not provide notice. Connick, 563 U.S. at 63 n.7. Second,

O’Brien’s testimony does not provide any information regarding how the other inmate died.

Without more information—which plaintiff has the obligation to provide because she is the

nonmovant, Bormuth, 870 F.3d at 499 (citation omitted)—O’Brien’s testimony does not

demonstrate that the circumstances of Filichia’s death and those of the other inmate are similar

enough for the purposes of establishing a pattern. Therefore, plaintiff’s pattern theory fails to

establish a genuine dispute of material fact regarding whether municipal deliberate indifference

caused the alleged training inadequacy.

                                                 b.

       In addition to the pattern theory, a plaintiff may establish that a municipality’s training

program is inadequate because of deliberate indifference by proving “a single violation of federal

rights, accompanied by a showing that [the municipality] has failed to train its employees to handle

recurring situations presenting an obvious potential” for the violation of constitutional rights.

Shadrick, 805 F.3d at 739 (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown, 520 U.S.

397, 409 (1997)). This method of proving that deliberate indifference caused a training program’s

inadequacy is available “in a narrow range of circumstances” in which a violation of federal rights

“may be a highly predictable consequence of a failure to equip [employees] with specific tools to

handle recurring situations.” Id. at 739 (citation omitted).




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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


        The district court ruled that plaintiff “[could not] prevail under the ‘single incident’

theory.” From the district court’s perspective, “[i]n Winkler, the Sixth Circuit rejected a theory

virtually identical to [p]laintiff’s, concluding that the assertion that jail personnel received only

first aid and CPR training was alone insufficient to ‘explain how the quality of the medical training

provided put the County on notice of the likelihood that jail personnel would respond inadequately

to an inmate’s medical emergency.’” (quoting Winkler, 893 F.3d at 903). “Because the evidence

showed that the third party’s medical staff was available to jail personnel for consultation and that

jail personnel indeed contacted that staff regarding the decedent’s medical complaints,” the

Winkler court “found ‘no basis to conclude that the County exhibited deliberate indifference by

failing to provide additional medical training to jail personnel.’” (quoting id.) The district court

was persuaded that the facts in this case closely mirrored those in Winkler: “Plaintiff fails to explain

how the medical training [that the Sheriff’s Office’s] employees received put Delaware County on

notice of the likelihood that jail personnel would respond inadequately to an inmate’s medical

emergency.” “This is especially true where there is no evidence that [contracted medical] staff

was, as a matter of policy, unavailable to jail staff for consultation.” The district court’s analysis

of Winkler on this issue is persuasive and we approve it.

        To prove that deliberate indifference caused the inadequacy of a municipality’s training

program, the plaintiff in Winkler—like Berry here—argued that “there [wa]s no evidence that any

jailer received training on anything other than basic first aid and CPR.” 893 F.3d at 903. The

Winkler plaintiff noted that “the jailers were the only medical providers at the jail all but 40 hours

per week.” Id. The Delaware County Jail, however, has even more in-person medical coverage; it

has nursing coverage 24 hours a day, seven days a week. In Winkler, the contract “medical

professionals were contacted multiple times with regard to [the decedent’s] complaints of stomach




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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


pain.” Id. On those facts, we concluded there was “no basis to conclude that the [municipality]

exhibited deliberate indifference by failing to provide additional medical training to jail

personnel.” Id.

       The same is true here. The nurses were contacted about Filichia’s abdominal pain and the

nurses had multiple interactions with Filichia. The contract medical professionals in Winkler were

“available to jail personnel, either in person or by phone, for consultation about an inmate 24 hours

a day, 7 days a week.” Id. As previously noted, the Delaware County Jail has even more in-person

medical coverage with in-person nursing coverage all day, every day. Because the relevant facts

of this case mirror Winkler’s so closely, we conclude that only having CPR and first-aid training

does not create a genuine dispute of material fact regarding whether deliberate indifference caused

the alleged inadequacy of the Sheriff’s Office’s training program.

                                                 3.

       On a failure-to-train claim, a plaintiff must prove—among other things—“that the

[training’s] inadequacy is closely related to or actually caused the plaintiff’s injury.” Plinton v.

Cty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (citation and internal quotation marks omitted).

The “closely related to” and “actually caused” phrases come from City of Canton, Ohio v. Harris,

489 U.S. 378, 391 (1989). The Supreme Court stated that a “training program must be closely

related to the ultimate injury” and that the plaintiff must “prove that the deficiency in training

actually caused the police officers’ indifference to her medical needs.” Id. “[A]dopt[ing] lesser

standards of fault and causation,” the Supreme Court warned, “would open municipalities to

unprecedented liability under § 1983. In virtually every instance where a person has had his or

her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to

something the city ‘could have done’ to prevent the unfortunate incident.” Id.




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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


        On the causation issue, the district court framed the question as whether plaintiff identified

any “evidence suggesting that either Deputy Mohnsen’s or any other jail personnel’s inability to

identify Filichia’s questionable health le[d] to her injury.” The district court answered that

question in the negative:

        [T]he video evidence reveals that one of the first things Deputy Mohnsen says upon
        entering the jail with Filichia is that he needs to speak to a nurse. When [licensed
        practical nurse] Bloomfield arrives, Deputy Mohnsen immediately explains that
        Filichia had medical issues involving pain in her abdomen, had recently been to the
        hospital, had a colonoscopy scheduled for later in the week, and that she had
        brought her medications and hospital discharge paperwork with her. Thus, Deputy
        Mohnsen had identified that Filichia’s health was questionable, regardless of the
        training he received.

Additionally, the district court noted that “[p]laintiff d[id] not specify any other corrections officer

who interacted with Filichia at the jail” and “failed, during the interaction, to recognize that Filichia

needed medical attention due to inadequate training, and failed to refer Filichia for medical

attention.” The district court’s evaluation of this issue is sound and we endorse it.

        Plaintiff has not identified record evidence that demonstrates that the allegedly deficient

training caused Deputy Mohnsen to be deliberately indifferent to Filichia’s medical needs.

Plaintiff fails on this point because Deputy Mohnsen was not indifferent to Filichia’s medical

needs, much less deliberately indifferent. As plaintiff acknowledges, once Deputy Mohnsen and

Filichia reached the jail, he contacted a licensed practical nurse and conveyed that he believed that

Filichia was in questionable health.       His conduct was precisely the opposite of deliberate

indifference. Additionally, plaintiff has not identified record evidence that suggests other jail

personnel (1) interacted with Filichia, (2) failed—because of inadequate training—to recognize

that Filichia needed medical attention, and (3) failed to refer Filichia for medical attention.

Accordingly, plaintiff has not identified a genuine dispute of material fact regarding whether the

training’s alleged inadequacy was closely related to or actually caused Filichia’s injury.



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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


                                                 III.

       The second issue on appeal is the district court’s denial of plaintiff’s motion to vacate the

judgment. “A district court’s grant of post-judgment relief under [Federal] Rule [of Civil

Procedure] 60(b) is reviewed for an abuse of discretion.” Blue Diamond Coal Co. v. Trustees of

UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001) (citation omitted). “A district

court abuses its discretion if it bases its ruling on an erroneous view of the law or a clearly

erroneous assessment of the evidence.” United States ex rel. Tenn. Valley Auth. v. 1.72 Acres of

Land in Tenn., 821 F.3d 742, 748 (6th Cir. 2016) (citation omitted). Additionally, for an abuse of

discretion to be present, there must be “a definite and firm conviction that the trial court committed

a clear error of judgment.” Blue Diamond Coal, 249 F.3d at 524 (citation omitted). Moreover,

“relief under Rule 60(b) is ‘circumscribed by public policy favoring finality of judgments and

termination of litigation.’” Id. (citation omitted).

       “On motion and just terms,” Rule 60(b) authorizes a district court to “relieve a party or its

legal representative from a final judgment, order, or proceeding for the following reasons:”

       (1)   mistake, inadvertence, surprise, or excusable neglect;

       (2)   newly discovered evidence that, with reasonable diligence, could not have
             been discovered in time to move for a new trial under Rule 59(b);

       (3)   fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
             misconduct by an opposing party;

       (4)   the judgment is void;

       (5)   the judgment has been satisfied, released, or discharged; it is based on an
             earlier judgment that has been reversed or vacated; or applying it
             prospectively is no longer equitable; or

       (6)   any other reason that justifies relief.

Fed. R. Civ. P. 60(b). “As a prerequisite to relief under Rule 60(b), a party must establish that the

facts of its case are within one of the enumerated reasons contained in Rule 60(b) that warrant


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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


relief from judgment.” Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th Cir. 2004) (citation

omitted). “An appeal from an order denying a Rule 60(b) motion does not bring up for review the

underlying judgment disposing of the complaint.” Id. (citations omitted). Instead, our task is

restricted to determining “whether one of the specified circumstances exists in which [the movant]

is entitled to reopen the merits of his underlying claims.” Id. (citation omitted).

       In the present case, plaintiff moved the district court for leave to substitute Delaware

County Sheriff Russell L. Martin for the Delaware County Sheriff’s Office as the defendant in the

lawsuit. On Wednesday, January 23, 2019, the district court granted plaintiff’s motion giving

plaintiff seven days to file a second amended complaint with the new defendant. On Friday,

February 1, 2019—the ninth day from the grant of the motion—plaintiff had still not filed a second

amended complaint. Consequently, the district court granted defendant’s motion for summary

judgment. That same day, the clerk of the court entered a judgment that dismissed the lawsuit.

       Later—but still on February 1, 2019—plaintiff filed a motion to vacate the judgment that

dismissed the lawsuit. Plaintiff argued that her failure to file the second amended complaint was

merely an oversight. According to plaintiff, her second amended complaint had been prepared for

nearly eight months, but there was an issue at her lawyer’s office. Specifically, the assistant

(Suzette Doak) of plaintiff’s attorney (Erica Ann Probst) was supposed to file the second amended

complaint, but on January 28, 2019, Ms. Doak’s husband had a medical emergency and she had to

take him to a hospital. Ms. Doak did not return to the office until January 31, 2019. Additionally,

the majority of Ms. Probst’s staff were not in the office from January 30, 2019 to February 1, 2019

because of inclement weather. Neither Ms. Doak nor Ms. Probst realized the second amended

complaint had not been filed. Once Ms. Probst received the order that dismissed the lawsuit, she

filed the second amended complaint the same day.




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No. 19-3096, Berry v. Delaware Cty. Sheriff’s Office


        The district court denied plaintiff’s motion to vacate the judgment, noting that its

previously issued summary judgment opinion “also explained that [it] would have alternatively

granted summary judgment in favor of the Sherriff [sic] on the merits . . . even if Plaintiff had filed

her Second Amended Complaint.” Because the district court properly granted summary judgment

on these alternative grounds, her challenge to the district court’s motion to vacate the judgment

fails as well.

                                                 IV.

        For these reasons, we affirm the district court’s judgment.




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