[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22

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Non

- Argument Calendar

____________________

DR. EDWARD L. JONES,

Plaintiff

- Appellant,

versus
DR. ANDREW HUGINE, JR., individually and officially as President of Alabama A&M University,
BRIAN RUBLE, individually and officially, CURTIS MARTIN, individually and officially, DR. DANIEL WIMS, individually and officially, ALABAMA A&M UNIVERSITY, et al., USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 1 of 142 Opinion of the Court 22

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Defendants

- Appellees.

____________________ Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:16

- cv

- 00326

- MHH

____________________

Before W ILLIAM P RYOR , Chief Judge, and N EWSOM and G RANT , Circuit Judges.

PER CURIAM : Dr. Edward Jones appeals the denial of his motion for relief from the judgment, Fed. R. C iv . P. 60

, filed nearly five years after
the district court dismissed his lawsuit challenging the termination of his employment at Alabama A&M University . In the lawsuit, Jones complain ed that the University and several of its employees
violat ed his federal civil rights , 42 U.S.C. § 1983, and Alabama law.
We affirm.

I. BACKGROUND In February 2016, Jones sued the u niversity; its former president Dr. Andrew Hugine; its former Dean of College Education,
Humanities and Behavioral Sciences , D r. Curtis Martin; its former
Provost and Vice President for Academic Affairs

, Dr. Daniel Wims;
and a university police investigato r , Brian Ruble. The complaint alleged that, as early as 2013, Jones , the Director of the Office of USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 2 of 1422

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Teacher Education and Certification, warned the university about various red flags that later came to the attention of institutional regulators . It alleged t hat, to “keep [Jones’s] mouth shut,” university administrators began a “retaliatory smear campaign” against
him , which escalated around 2015, when he refused to participatein a committee that he believed was designed to cover up the university’s problems

. The complaint further alleged tha t Wims, on October 13, 2015, placed Jones on administrative leave and

, on January 14,

201 6
, recommended terminating Jones

. It alleged that after Jones notified the u niversity of his intent to appeal, Ruble and university police officers executed search warrants of Jones’s home and personal property based on a f alse allegation that he had stolen university p r operty

. The complaint alleged that the unlawful searches of
h is “personal electronic data and records ” yielded the evidence on which the university relied to terminate him

. It also alleged that the university falsely accused him of professional incompetence, committing theft, and engaging in immoral conduct.

In Mar ch 2016, Jones moved for a temporary restraining order and a preliminary injunction to bar the university from terminating him without proper notice and a hearing

. In his affidavit, Jones averred that he did not “have any information about the basis for the charges” against him. But he attached a n “Intent to Terminate” letter, dated January 14, 2016, which stated

, “The cause for termination is gross professional misconduct. You are charged with
bo th using University resources to view obscene materials and the USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 3 of 144 Opinion of the Court 22

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production and/or creation of obscene materials. The behaviorswhich are the basis of these charges occurred on university property during duty hours.” Jones also attached his termination lett er, dated March 10, 2016, which stated that he was terminated immediately because “[t]here is convincing evidence that you have engaged in sexual conduct below minimum standards of professional integrity and misused University computing/electronic assets i n gross violation of well

- established University policy. ”The university defendants opposed the motion for injunctive relief and moved to dismiss the complaint

. In an attached affidavit, Ruble averred that the university property manager reported
several missing computers to the police, including a laptop computer issued to Jones

. On February 12, 2016, a fter obtaining and executing a warrant to search Jones’s home for stolen property , Ruble retrieved a university

- issued laptop and other items with the

assi stance of the Huntsville Police Department . A computer forensics expert reviewed the laptop and determined that three pornographic videos had been downloaded to it . According to Ruble, thevideos depicted Jones masturbating on university property and receiving fellatio from two young males , who appeared to be about 20 years old, in a university classroom

. In May 2016, after a hearing, t he district court denied inju nctive relief because Jones failed to establish a substantial likelihood
of success on the merits and because he had an adequate remedy
at law

. The district court granted the university defendants’ motion to stay discovery until it ruled on their motion to dismiss. USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 4 of 1422

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In July 2016, Jones sought reconsideration of the denial of injunctive relief. He submitted a new affidavit averring that on the same day that Wims placed him on administrative leave in October

2015 due to “serious concerns raised by the Alabama State Department of Education [] as to the sufficiency of [] administrative processes,” the university’s Chief Information Officer and a locksmith went to his office to retrieve his computer and to change the locks. Jones stated that, on March 10, 2016, h e was arrested at his home
for theft of university property and terminated. Jones stated that he was not terminated because of performance or his alleged theft of
property , but because of his sexual orientation

. In February 2017, the district court held a hearing on Jones’s
motion for reconsideration o f injunctive relief. Jones stated that he had the opportunity to attend a grievance hearing at the university

, but he did not attend because he “repeatedly asked for the information, the equipment, [and ] the documentation that [the university] had

, ” including information related to his criminal trial and
the search of his home. Jones stated that he wanted his forensic specialist to review the items to determine whether the obscene
material was located on university property, or if the material had
been transferred over from personal devices like jump drives and cell phones that were seized from his office and home

. The university defendants responded that Jones and his previous counsel had viewed the obscene material that was evidence against him in university counsel’s office with Ruble pr esent. They argued that because Jones was aware of the evidence against him

, USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 5 of 146 Opinion of the Court 22

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he could have participate d in the grievance hearing

. The y argued that Jones was challeng ing his inability to conduct discovery before
the grievance hearing , but the grievance procedure was not a lawsuit. The y also argued that Jones’s “voluminous document request” made it clear to them “that he was not only seeking discovery as to the particul ar electronic documents that were relied on interms of his termination, but also discovery as to the box of documents related to the theft of mon ie s ” that formed the basis of the state criminal charge against him. And they asserted that it was the

core ac t s of Jones’s sexual misconduct on campus that was adequate grounds for his immediate termination , and the existence of recordings of th at misconduct on university devices only added another layer to his misconduct

. During the evidentiary hearing, the district court dismissed Jones’s Fourth Amendment claim . It ruled that the validity of the warrant to search his home was an evidentiary matter at issue in his ongoing state criminal case , so it was not a cause of action against the university defendants. The district court told Jones’s
counsel that it needed to avoid further delays in resolving the pending motion to dismiss : I want you to understand [] the challenge that the court faces, we have been working on trying to see if we could identify any claims in this case that could go forward for months now. Dr. Jones haschanged attorneys a number of times. I have scheduled hearings at which no one has appeared. I’m still working from the original complaint in this action USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 6 of 1422

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and counsel for the plaintiff is say ing that the court should be aware of this, the court should be aware ofthat, but the court is trying to resolve a motion to dismiss the complaint that is before the court. [Jones’s] counsel has had abundant time in which to amend the complaint, if [his] counsel chose to, and at some point the court needs not to have amoving target so that the court can resolve the pending motion.

On February 16, 2017 , the district court denied Jones’s motion for reconsideration of its denial of injunctive relief and dismissed the Fourth Amendment claim and several other claims with prejudice. The district court ordered the university to give Jones another opportunity to en gage in the grievance process

. Specifically, it ordered Jones to submit any information that he wanted the university to consider , and it ordered the university to provide a written response to Jones’s supplemental information explaining
whether the information change d its decision or require d further proceedings. The district court ordered that Jones , after receiving the university’s written response, either file an amended complaint to proceed with the action or file a notice voluntarily dismissing i t

. Because the district court anticipated receiving either an amended complaint or a notice of voluntary dismissal, it denied the motion
to dismiss as moot

. On March 10, 2017, the district court granted Jones ’s request for an extension and reiterated its instructions about filing an amended complaint

. USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 7 of 148 Opinion of the Court 22

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Jones did not file an amended complaint, nor did he dismiss
the lawsuit . Instead, he filed a discovery request for the electronic
devices that allegedly contained the obscene material . He also requested information about other university employees who had been terminated for theft of property, sexual misconduct, or moral turpitude

. On April 27, 2017, the district court held a telephon e conference with Jones and the university defendants and pro vided Jones an opportunity to explain why he disregarded its orders. The district court explained that, regardless of whether the obscene material was downloaded or stored on university property , the university had an adequate reason to terminate Jones bec ause he engaged in sexual conduct in a classroom on campus

, which Jones had not disputed

. The next day , the district court dismissed the lawsuit for fai lure to follow its orders , Fed. R. Civ. P. 41(b)

. The district court denied Jones’s motion for reconsid eration , Fed. R. Civ. P. 59(e)

. Jones did not appeal either the February or April 2017 dismissal orders.

Almost five years later, in February 2022, Jones moved to vacate the February 2017 order under Federal Rule of Civil Procedure 60(b)(6) and, alternatively, 60(d)(3), insofar as the order dismissed his Fourth Amendment claim for unlawful search. Jones asserted tha t in October 2017, he brought a n employment discrimination and retaliation lawsuit against the university and had beenable to obtain discovery, including a “box of documents” that contained an investigative file on him. He contended that the USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 8 of 1422

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documents related to the university’s decision to terminate him and its post

- termination investigation of him . Specifically, he argued that the file established that counsel for the university defendants deliberately lied to the district court at the February 2017 hearing when counsel represented that the file “related to theft of monies that were otherwise state funds that were collected by

Dr. Jones.” Jones argued that this false statement “trick[ed] theCourt into believing the investigative file was not relevant to prev ent dismissal of [his] Fourth Amendment Claim” and provided
cause for the district court to vacate its February 2017 order under Rule 60(b) ( 6) or Rule 60(d)(3)

. In the same motion, he moved for leave to file an amended complaint adding defendants and to co nsolidate this lawsuit with his employment discrimination lawsuit

. The district court denied the motion to vacate the judgment.

It recognized that it erred by dismissing with prejudice Jones’s
Fourth Amendment claim

, instead of staying the claim until the state criminal proceeding resolved the lawfulness of the search

, because a claim for damages for an alleged Fourth Amendment viola tion is un available in the state proceeding

. Deakins v. Monaghan

, 484 U.S. 193, 202 (1988)

. But it explained that, even if it had not dismissed the Fourth Amendment claim in February 2017, it would
have later dismissed the claim in its April 2017 order dis missing the
lawsuit for failure to comply with its orders.

The district court ruled that Jones’s evidence fell short of establishing that university counsel committed fraud on the court under R ule 60(d)(3) . It explained that its sua sponte decision to dis miss USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 9 of 1410 Opinion of the Court 22

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the Fourth Amendment claim had not been procured by fraud

, the theft investigation was legitimate, and nothing established that the university had tampered with the administration of justice. It stated that, even if it found that the university defendants or their counsel
misled the district court about the contents of the “box of documents , ” it still would not grant relief under Rule 60(d)(3) in the light
of Jones’s own lack of transparency duri ng the litigation, which included his refusal to participate in the grievance process when ordered to do so and his first affidavit stating that he did not “have any information about the basis for the charges” when he already
received two letters informin g him that he was charged with “using University resources to view obscene materials and the production
and/or creation of obscene materials

. . . on University property and during duty hours ” and that he was terminated for sexual misconduct and misuse of university assets.

The district court also ruled that Jones could not use a Rule 60(b)(6) motion as a substitute for an appeal. It explained that “[o]n another record, [its error in dismissing with prejudice the Fourth Amendment claim] might suffice to pe rmit relief under Rule 60(b) ( 6), but here, Dr. Jones [could not] escape the fact that his litigation strategy ultimately is to blame for the dismissal of his claims
in this action

. ”

II. STANDARD OF REVIEW

We review the de nial o f a motion under Federal Rule of Civil Procedure 60(b)(6) and (d)(3) for abuse of discretion

. Aldana USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 10 of 1422

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v. Del Monte Fresh Produce N.A., Inc. , 741 F.3d 1349, 1355 (11th Cir.

2014 ); Booker v. Dugger , 825 F.2d 281, 285 (11th Cir. 1987).

III. DISCUSSION
Jones ar gues that substantial justice required the district court to grant his motion under Rule 60(b)(6). We disagree. A district court “ may relieve a party

. . . from a final judgment, order, or proceeding for

. . . any other reason ” not covered by the rest of

R

ule 60(b) “that justifies relief.” Fed. R. Civ. P. 60(b)(6). Because this is “an extraordinary remedy,” Jones must establish “a justification for relief so compelling that the district court was required to grant [his] motion.” Rice v. Ford Motor Co. , 88 F .3d 914, 919 (11th Cir. 1996). Our review of the ruling on a Rule 60(b) motion “ is fairlycircumscribed and deferential; this appeal does not bring up the underlying judgment for review.” Id. (quotation marks omitted).

The district court did not abuse its discretion by ruling that

, in the light of the entire record, this case did not present the kind of equitable factors that warrant Rule 60(b) relief. See Seven Elve s, Inc. v. Eskenazi , 635 F.2d 396, 402 (5th Cir. 1981) (li sting the factors that should inform the consideration of a Rule 60(b) motion)

. Thedistrict court considered the policy favoring the finality of judgments and that Jones’s motion effectively was a belated appeal of
its decision to dismiss his Fourth Amend ment claim. Id. It ruled that, even assuming counsel for the university defendants misled it regarding the contents of the “box of documents,” the equities did

not weigh in favor of reviving Jones’s claim in the light of his own conduct contributing to the dismissal of the lawsuit

. Id. Indeed, the USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 11 of 1412 Opinion of the Court 22

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record reflects various problems that Jones’s litigation strategy
caused the district court and the efforts the district court made to resolve these problems in a manner that was fair to him

, including holding several hearings and telephone conferences and warning Jones before dismissing the lawsuit

. Jones argues that the district court failed to consider the merits of his re

- framed Fourth Amendment claim . B ut the district court
considered the evidence he submitted and ruled that he still “ha[d]not demonstrated that [the university] launched a bogus investigation into alleged theft by Dr. Jones as a ploy to investigate Dr. Jones’s sexual misconduct ” and found that the theft investigation was legitimate. We are not persuaded that the district court failed
to consider the appropriate factors in denying Jones relief under Rule 60(b)(6) , or that exceptional circumstances are present in this
case that required the district court to grant hi m relief

. See id. ; Rice

, 88 F.3d at 919. Insofar as Jones now challenges that the April 2017 order dismissing his lawsuit was reversible error too because he did not display willful contempt and lesser sanctions would have been appropriate , he cannot use his Rule 60(b) motion as a substitute for a timely appeal of that order. See Rice , 88 F.3d at 919.

Jones also argues that the district court “completely disregarded” the issue whether he offered sufficient evidence to establish fraud on the court under Rule 60(d)(3) , but w e disagree. A litigant may bring an independent action for relief under Rule 60(d), formerly the savings clause of Rule 60(b), which allows a district court to “set aside a judgment for fra ud on the court.” Fed. R. Civ. USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 12 of 1422

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P. 60(d)(3). To obtain this relief, the movant must establish “fraud on the court” by clear and convincing evidence of egregious misconduct

. Travelers Indem. Co. v. Gore , 761 F.2d 1549, 1551 (11th Cir. 1985). The movant also must establish that the adverse party obtained the verdict through fraud and employed an “unconscionable plan or scheme” to improperly influence the decision of the district

court. Rozier v. Ford Motor Co. , 573 F.2d 1332, 1338 (5th Cir. 1978)

. The record c ontradicts Jones’s argument that the district
court failed to consider whether he had established fraud on the

court

. The district court considered his arguments a bout the investigative file and found that he “ha[d] not established that dismissal of his Fourth Amendment claims was procured by fraud

. ” The district court explained that

, even if it found th at the investigative file

was part of the same “box of documents” referenced by opposing counsel during the F ebruary 2017 hearing, and even if it found that opposing counsel had misled the district court about his knowledge
of the contents of that box

, those findings would not entitle Jones to relief under Rule 60(d)(3) because the presumedly “misleading”

stateme nt did not influence its decision to dismiss the claim under Rule 12(b)(6) or to dismiss the lawsuit for fail ure to comply with its
orders

. Jones could not use opposing counsel’s statement as a basis to relitigate his Fourth Amendment claim. See Travelers

, 761 F.2d at

1552.
Jones incorrectly argues that the district court violated the principle of party presentation when it relied on his “negligence”
as a reason for finding that relief was unwarranted

. See United States USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 13 of 1414 Opinion of the Court 22

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v. Sineneng

- Smith , 140 S. Ct. 1575, 1579 (2020). But the university defendants argued in their response to Jones’s motion that he lacked exceptional circumstances due t o his own conduct. And even if they had not raised his conduct as a reason to his deny relief,
the district court stil l was tasked with consider ing whether Jones “had a fair opportunity to present his claim” and “any other factors relevant to the justice of the judgment.” Seven Elves , 635 F.2d at 402.
T he district court did not abandon its role as a “neutral arbiter of

ma tters” to construct its own theories f or denying relief. See Sineneng

- Smith , 140 S. Ct. at 15 79. And b ecause we conclude thatthe district court did not abuse its discretion by denying Jones’s motion for relief from the judgment, we deny his motion to supp lement the record with affidavits that were not presented to the district court. See Shahar v. Bowers , 120 F.3d 211, 212 (11th Cir. 1997) (en banc).

IV. CONCLUSION

We AFFIRM the denial of Jones’s motion for relief from the judgment, DENY his motion to supplement the record, and
GRANT his motion to withdraw his previous motion to file his reply brief with partial redactions. USCA11 Case: 22-13366 Document: 37-1 Date Filed: 07/05/2023 Page: 14 of 14