Opinion
No. 72556
05-18-2018
DAVID AUGUST KILLE, SR., Appellant, v. DON POAG; ROBERT B. BANNISTER; AND THE STATE OF NEVADA, Respondents.
ORDER OF AFFIRMANCE
David August Kille, Sr. appeals from a district court order denying an NRCP 60(b) motion to set aside a judgment in a civil rights action. Eleventh Judicial District Court, Pershing County; Jim C. Shirley, Judge.
Kille filed a complaint against respondents alleging they were deliberately indifferent to his serious medical needs and violated his right to equal protection by failing to provide him with tinted glasses to treat his photophobia (light sensitivity). The district court granted respondents summary judgment and this court affirmed that decision. See Kille v. Poag, Docket No. 65174 (Order of Affirmance, July 20, 2015). Kille then filed a motion to set aside the prior summary judgment alleging fraud and newly discovered evidence. The district court denied the motion on multiple bases, including finding that Kille failed to establish newly discovered evidence and failed to establish fraud. This appeal followed.
To the extent the parties present arguments regarding the timeliness of Kille's appeal, the notice of appeal was timely filed because the notice of entry served for the challenged order did not trigger the running of the NRAP 4(a)(1) appeal period. See NRCP 58(e) (requiring the notice of entry to be served by a party, except in family law matters where the court may serve it); see also In re Duong, 118 Nev. 920, 922-23, 59 P.3d 1210, 1211-12 (2002) (concluding that the time for filing an appeal had not yet begun to run when the notice of appeal was filed because the respondent had failed to serve the appellant with written notice of entry).
The district court has broad discretion in deciding whether to grant or deny an NRCP 60(b) motion to set aside a judgment, and this court will not disturb that decision absent an abuse of discretion. Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996). Here, the district court reviewed the purportedly new evidence and Kille's arguments regarding the same and determined that Kille failed to demonstrate that NRCP 60(b) relief was warranted. In rejecting his fraud based request for relief, the district court found that Kille's allegations were conclusory and did not establish an unconscionable plan or scheme and that Kille failed to provide sufficient factual information to support the conclusion that there was fraud upon the court. Our review of the record supports these findings and thus, we conclude there was no abuse of discretion in the district court's determination that Kille failed to establish that Rule 60(b) relief was warranted based on newly discovered evidence or fraud. See id. We therefore affirm the district court's order denying Kille's NRCP 60(b) motion.
We have considered Kille's remaining arguments and conclude they do not provide a basis for relief. --------
/s/_________, C.J.
Silver /s/_________, J.
Tao /s/_________, J.
Gibbons cc: Hon. Jim C. Shirley, District Judge
David August Kille, Sr.
Attorney General/Carson City
Attorney General/Las Vegas
Pershing County Clerk