United States District Court, D. South Carolina, Columbia Division
Terry H. Capone, Plaintiff
City of Columbia, Defendant.
OPINION AND ORDER ON PLAINTIFF'S MOTION TO VACATE
AND AMENDED MOTION TO VACATE ECF NOS. 55, 59
CAMERON MCGOWAN CURRIE, Senior United States District Judge.
matter is before the court on Plaintiff's “Motion
to Vacate/Set Aside a Void Summary Judgment for Fraud Upon
[t]he Court” and an amended motion seeking the same
relief on expanded grounds. ECF No. 55 (“Original
Motion” filed May 30, 2019); ECF No. 59 (“Amended
Motion” filed Jul. 10, 2019). The Original Motion consists
of a cover letter and seven exhibits, but no explanatory
memorandum. The Amended Motion includes a supporting
memorandum and additional exhibits. Both motions are denied
for reasons set forth below.
judgment in this action was entered on January 8, 2015. ECF
Nos. 53 ([Original] Opinion and Order), 54 (Judgment), 55
(Corrected Opinion and Order). The basis for the judgment is
set out in the [Original] Opinion and Order entered January
8, 2015, and Corrected Opinion and Order entered January 9,
2015, which differs from the original only in correcting a
scrivener's error in one footnote. Compare ECF No. 52 at
n. 3 with ECF No. 54 at n. 3 (removing incorrect reference to
an “alternate ruling”). The Corrected Opinion and
Order adopted the Report and Recommendation of the Magistrate
Judge (ECF No. 48) and granted summary judgment to Defendant,
the City of Columbia (“the City”) on
Plaintiff's claims for: (1) racial discrimination and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C.
§ 1983 (“Discrimination and Retaliation
Claims”); and (2) violation of the overtime provisions
of the Fair Labor Standards Act of 1938, 29 U.S.C.
§§ 201, et seq., and South Carolina Payment of
Wages Act, SC Code Ann § 41-10-10, et seq. (“Wage
Original Motion consists of a cover letter and seven
exhibits. Beyond an introductory sentence asking the court to
consider the attached exhibits, the cover letter includes a
list of the exhibits with a brief characterization or comment
for some of them. Beyond the title of the motion and the
words “Fraud Upon the Court” included in the
description of the first two exhibits, there is little to
suggest the basis for the allegation of fraud or any other
ground that might support relief from judgment. The court
has, nonetheless, carefully reviewed the letter and
attachments which are summarized below.
cover letter describes Plaintiff's first exhibit as
“C/A No. 3:12-3369-CMC-PJG VOID Opinion and [O]rder
January 8, 2015 Sen. U.S. Dist. Judge Cameron McGowan
Currie[:] Fraud Upon the Court[.]” ECF No. 55 at 1. The
first exhibit is the Original Opinion and Order granting the
City's motion for summary judgment (ECF No. 52). ECF No.
55-1 at 1-15.
cover letter describes the second exhibit as a “City of
Columbia Internal Email Reference: Kronos/pay Check and
Reporting Time Survey showing their Pay Calculation methods
to include overtime where not correct and was release[d]
prior to January 8, 2015 Void Opinion and Judgment Fraud Upon
the Court.” ECF. No. 55 at 1. The attached exhibit
(“Kronos Email”) indicates the email was sent on
April 9, 2014. ECF No. 55-1 at 16-26. It purports to explain
how the Kronos system works, including some limitations, and
asserts a related process for figuring pay will “begin
to simplify the long standing confusion on how shift fire
employees are paid.” Id. at 22.
third exhibit is described as the “Affidavit of Dr.
Tiona Praylow Envision Wellness Medical Group: Unsound mind
Statute of limitations.” ECF No. 55 at 1. The attached
exhibit is a letter dated April 30, 2019, “outlin[ing]
the clinical imperatives warranting a full and unequivocal
waiver of the statute of limitations in [Plaintiff's]
claim for Post-Traumatic Stress Disorder
[(“PTSD”)], an occupational injury incurred
during his service in the City of Columbia fire
battalion.” ECF No. 55-1 at 28. Dr. Praylow asserts
Plaintiff has been under her care since 2013 and was
“of an ‘unsound mind, '” unable to file
the related claim (presumably a workers compensation claim)
during the time he would otherwise have been required to do
so, which she identifies as running from September 15, 2015,
to September 15, 2016.
fourth exhibit is described as the “Affidavit Mrs.
Williams Agape Counseling addressing Altered medical
Opinion.” ECF No. 55 at 1. The attached affidavit is
dated May 14, 2019, asserts Plaintiff has been under the care
of Agape Counseling and Training Services, Inc. since August
31, 2012, and opines Plaintiff suffers PTSD. ECF No. 55-1 at
32. It refers to a May 18, 2015 letter written by affiant to
the Department of Veterans Affairs and later submitted by
Plaintiff in support of a workers compensation claim and
opines Plaintiff's preexisting PTSD was aggravated by his
work for the City. Id.
fifth exhibit is described as “5/28/2019 EEOC Charge of
Discrimination #436-2019-00954[.]” ECF No. 55-1
(“EEOC Charge”). The attached exhibit names the
City in the box designated for the employer or agency that
allegedly discriminated against Plaintiff. ECF No. 55-1 at
34. However, subsequent text, in a section titled
“Verified Complaint, ” directs the allegations of
discrimination to the South Carolina Workers Compensation
Commission (“SCWCC”) as follows:
The [SCWCC] is Unconstitutional. This is based on the
[SCWCC's] and this Court's Long history &
practicing racism (White Supremacy) which functions in all
areas of human activity[.] . . . The decisions had disparate
impacts, because despite all irrefutable evidence provided to
the [SCWCC], the State of South Carolina failed to provide
equal protection under the color of law, there is a history
of favorable outcomes to Whites under your system of misogyny
and racism (White Supremacy).”).
Id. at 35 (also stating Plaintiff “has been
unable to retain an Attorney/Law firm to represent him
[before the SCWCC] due to Racism” and listing three
workers compensation claims filed in 2013).
this introduction, the EEOC Charge provides a chronology of
events that appears to relate primarily to Plaintiff's
workers compensation claims, pursuit of disability or
retirement benefits, and related medical records.
Id. at 36-43. For example, events between January
and February 2014 refer to three communications between
Plaintiff and the SCWCC's third-party claims
administrator and two communications between Plaintiff and
his employer. The latter include one communication advising
Plaintiff he is eligible for restricted duty due to a wrist
injury and one addressing disability benefits under a
retirement plan. Id. at 36, 37.
April 9, 2014 email regarding the Kronos pay system
(presumably the Kronos Email discussed above) is referenced
next, along with a statement the employer provided
“incorrect wage information” in connection with
the “South Carolina Retirement System Final Payroll
Certification.” Id. at 37.
next entry refers to medical records created on November 11,
2014, and March 15, 2015, indicating Plaintiff's
“history and symptoms warrant a surgical
decompression” of his “left ulnar nerve.”
Id. After quoting the record, the EEOC Charge
characterizes several notations on the medical forms as
“forged” and concludes as follows:
“Plaintiff asserts these fraudulent documents and
statement were sent via electronically and through the U.S.
mail and used in furtherance of the Insurance Fraud scheme to
deny workers compensation disability benefits
(property).” Id. at 38.
next entry refers to this court's January 8, 2015 Opinion
and Order granting summary judgment, characterizing the order
as “produced by Fraud Upon the Court by The City of
Columbia and their Attorney[.]”. Id. at 38.
This paragraph quotes an introductory paragraph from the
order, which summarizes the nature of the City's motion
and the court's ruling.
remaining twenty-seven items in the chronology all post-date
entry of judgment in this action. Id. at 38-43
(referring to events from March 15, 2015, through May 8,
2019). These entries refer to the following: (1) medical
records relating to workers compensation claims; (2)
communications between Plaintiff and the SCWCC or the City
relating to workers compensation claims; (3) proceedings,
motions and orders relating to workers compensation claims
(and state-court appeals of SCWCC decisions); (4) Freedom of
Information Act requests (apparently relating to
Plaintiff's workers compensation claims), and (5) two
communications addressing Plaintiff's belief his
retirement benefits were calculated based on incorrect
information transmitted by the City. The retirement-related
communications are both dated in October 2018. Id.
this chronology, the EEOC Charge (1) asserts the SCWCC, City
of Columbia, and third-party claims administrator acted in
concert in making claims-related decisions and (2) purports
to assert various causes of action, including for violation
of “RICO, ” due process and equal protection.
Id. These “causes of action” appear,
primarily, to challenge handling of Plaintiff's workers
compensation claims, though a generous reading might
encompass retirement/disability claims. Id.; see
also Id. at 45-47 (proffering four comparators and
describing their workers compensation claims). Ultimately,
the EEOC Charge seeks “judgment against defendants for
violations of Title VII[, and the] Americans with
[D]isabilities Act of 1990” and asserts the damges
should be “tripled in accordance with RICO[.]”
6. The sixth exhibit is described as “TCAPONE S.C.
Police Retirement Final Pay Certification, [C]ity of Columbia
transmitted electronic incorrect pay information to include
overtime.” ECF No. 55 at 1. The attached exhibit
includes a “Final Payroll Certification” with a
“Date Received” of April 22, 2014. ECF No. 55-1
at 51. It also includes Plaintiff's W-2 Wage and Tax
Statements for 2011-14 and what appears to be a payroll
summary covering multiple pay periods in 2011 and 2012.
7. The last exhibit is described as follows on the cover
letter: “City of Columbia submitted incorrect pay for
Guardian long term disability and to the S.C. Workers
Compensation Commission.” ECF No. 55-1. The attached
exhibit consists of the “Employer Section” of
what is presumably a large document. ECF No. 61. It includes
a workers compensation claim No. and is signed on behalf of
the City by the “Health and Safety Chief.”
City construes Plaintiff's motion as asserting two
grounds for relief from judgment: (1) an argument
Plaintiff's “overtime compensation was calculated
improperly, resulting in a diminished retirement
income”; and (2) an assertion Plaintiff “was
mentally unfit to understand and to participate in the
exercise of his legal rights.” ECF No. 56 at 1. The
City argues the motion is untimely because brought more than
one year after entry of judgment and fails in any event
because “[n]either Plaintiff's allegations of a