# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitte d March 10, 2016 *

Decided March 14, 2016

Before

DIANE P. WOOD , C hief Judge

RICHARD A. POSNER , Circuit Judge

ILANA DIAMOND ROVNER , Circuit Judge

No. 15

- 2278

JOHN G. DAHLK , Plaintiff

- Appellant ,

v

.
MICHELLE WOOMER, et al. , Defendants

- Appellees

. Appeal from the United States District Court for the Eastern District of Wisconsin

.

No. 12

- C V

- 556

Rudolph T. Randa, Judge

.
O R D E R
John Dahlk, a Wisconsin inmate , appeals the denial of his postjudgment motion to set aside the grant of summary judgment against him in his civil

- rights suit alleging deliberate indifference of prison officials

. The district court denied the motion, and we affirm.

Dahlk sued several prison officials under 42 U.S.C. § 1983, asserting that they had been deliberately indiffer ent in treating a wound on his inner thigh. Tests revealed the presence of E. coli, for which he was prescri bed a course of antibiotics. Dahlk

* After examining the briefs and record, we have concluded that oral argument is unnecessary. T he appeal is thus submitted on the brief s and record. See F ED

. R. A PP

. P. 34(a)(2)(C)

. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 15

- 2278 Page 2

faulted medical staff for not treating the wound more aggressively an d for disregarding his allergy to p enicillin

. The district court granted summary judgment for the defendants, and we affirmed. See Dahlk v. Woomer , 592 F. App’x 523 (7th Cir. 2015).

While that appeal was pending in this court , Dahlk filed a motion under Federal Rule of Civil Procedure 60(b) urging the district court to vacate i ts grant of summary judgment based on his claim that the proceedings were tainted by the defendants’ fraud. He attached documents purportedly showing that the affidavits submitted by the defendants at summary judgment containe d false statements and that the defendants had tampered with his medical records. After we denied Dahlk’s first appeal, the district court denied his postjudgment motion, explaining that “there is nothing in the plaintiff’s submissions that undermines or c hanges the outcome of the case.”

In this appeal Dahlk maintains that the defendants committed perjury and doctored evidence du ring the underlying proceedings. B ut he has not shown that the district court abused its discretion in denying his motion. A par ty seeking to set aside a judgment under Rule 60(b)(3) must prove fraud by clear and convincing evidence, Wickens v. Shell Oil Co ., 620 F.3d 747, 759 (7th Cir. 2010), and Dahlk has fallen far short of that standard. He highlights trivial discrepancies among his medical records and defendants’ assorted submissions, but none of these supposed inconsistenc ies constitute s clear proof of fraud.

In any event, the evidence to which Dahlk points was not new ly discovered

. Under Rule 60(b) ( 2) , evidence is “new” only if it is discovered after the litigation is over and judgment has been entered. See Gleash v. Yuswak , 308 F.3d 758, 761 (7th Cir. 2002); Bell v. Eastman Kodak Co ., 214 F.3d 798, 801 (7th Cir. 2000). All of the documents he submit ted as proof of fraud either were or could have been submitted at summar y judgment

.

Dahl k also argues that the district court erred b y declining to strike the defendant s ’ response to his R ule 60(b) motion based on their failure to attach a certificate of service

. But we give considerable deference to a district court’s decision to

excu se harmless procedural mistakes, s ee Stevo v. Frasor , 662 F.3d 880, 887 (7th Cir. 2011) , and Dahl k himself conceded in his motion to strik e that he still received a copy of the response at least three months before the district court ruled on his Rule 60(b) motion.

AFFIRMED.