Clark et al v. Chevvront et al

Filing 11

MEMORANDUM AND ORDER denying the Plaintiff's 9 Motion to Set Aside Judgment 10 and Motion for Leave to Proceed in forma pauperis. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH W. CLARK,
Plaintiff,
v.
JEFFRE CHEVVRONT, et al.,
Defendants.

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4:13CV3075

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion to Set Aside Judgment
(filing no. 9) and Motion for Leave to Proceed In Forma Pauperis (“IFP”) (filing no.
10). For the reasons discussed below, the Motions are denied.
I. BACKGROUND
On May 6, 2013, the court informed Plaintiff that to ensure further
consideration of his Complaint, he needed to either tender the $350.00 filing fee to
the Clerk of the court or submit a request to proceed in forma pauperis and an
affidavit of poverty in support thereof. (Filing No. 5.) The court provided pauper’s
forms for Plaintiff’s use and stated the forms “should be completed and returned to
this court.” (Id.) The court gave Plaintiff until June 6, 2013, to comply with its May
6, 2013, Memorandum and Order. (Id.) In doing so, the court warned Plaintiff that
his failure to comply could result in dismissal of the Complaint. (Id.)
On May 10, 2013, Plaintiff filed a Motion to Appoint Counsel and Motion for
Expungement of Record. (Filing No. 6.) However, Plaintiff did not pay the court’s
filing fee or complete and return the pauper’s forms by the court’s June 6, 2013,
deadline. (See Docket Sheet.)

On June 11, 2013, the court dismissed this matter because Plaintiff failed to
comply with the court’s May 6, 2013, Memorandum and Order. (Filing Nos. 7 and
8.) In doing so, the court also noted that Plaintiff’s Complaint raised claims relating
to a criminal conviction and sought expungement of his criminal record. (Filing Nos.
1 and 7.) The court informed Plaintiff that he may not use 42 U.S.C. § 1983 to cast
doubt on the legality of his conviction, even when he is no longer incarcerated.
(Filing No. 7.) See Heck v. Humphrey, 512 U.S. 477, 486-87, 490 n.10 (1994); see
also Miranda v. Yuma Cnty., No. 02-15824, 2002 WL 31803840 (9th Cir. Dec. 2,
2002) (concluding district court properly dismissed plaintiff’s expungement claim
because he could not collaterally attack his conviction under section 1983).
II. PLAINTIFF’S MOTIONS
Liberally construed, Plaintiff seeks to set aside the court’s June 11, 2013, Order
and Judgment under Fed. R. Civ. P. 59(e), reopen this case, and proceed in forma
pauperis. (Filing Nos. 9 and 10.) Plaintiff states he is on “disability ssi low income”
and seeks expungement of his state court record because the state violated his “Fifth
and Fourth Amendment” rights. (Filing No. 10.)
“Rule 59(e) motions serve the limited function of correcting manifest errors
of law or fact or to present newly discovered evidence . . . . Such motions cannot be
used to introduce new evidence, tender new legal theories, or raise arguments which
could have been offered or raised prior to entry of judgment.” U.S. v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (internal citations and quotations
omitted).
The court has carefully reviewed Plaintiff’s Motion and finds that he is not
entitled to relief under Rule 59(e). Indeed, pro se litigants are not excused from
complying with court orders. See, e.g., Henderson v. Renaissance Grand Hotel, 267
Fed. App’x. 496, 497 (8th Cir. 2008) (concluding district court did not clearly err in
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dismissing case where pro se plaintiff failed to prosecute her case and failed to
comply with court orders). Further, even if Plaintiff had complied with the court’s
order, his claims do not entitle him to relief under 42 U.S.C. § 1983. Accordingly,
IT IS THEREFORE ORDERED that: Plaintiff’s Motion to Set Aside Judgment
(filing no. 9) and Motion for Leave to Proceed IFP (filing no. 10) are denied.
DATED this 25th day of June, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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