Guerry v. Frakes et al

Filing 91

MEMORANDUM AND ORDER - that Plaintiff's Motion to Vacate Judgment on Newly Discovered Evidence and Misconduct by an Adverse Party (filing no. 132 , Case No. 8:15CV323; filing no. 86 , Case No. 4:17CV3047) is denied. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN FRANK GUERRY,
Plaintiff,

8:15CV323

vs.
SCOTT FRAKES, Director; BRIAN
GAGE, Warden; GUIFFRE, Case
Worker; and THOMPSON, Case
Worker;

MEMORANDUM
AND ORDER

Defendants.

BRIAN FRANK GUERRY,

4:17CV3047

Plaintiff,
vs.
SCOTT FRAKES, in his individual
capacity; FRANK HOPKINS, in his
individual capacity; BRIAN GAGE, in
his individual capacity; et al.;

MEMORANDUM
AND ORDER

Defendants.
In these consolidated actions, Plaintiff Brian Frank Guerry (“Guerry” or
“Plaintiff”) sought monetary damages against several prison officials for allegedly
violating Guerry’s Eighth Amendment rights by failing to protect his safety during,
and subjecting him to cruel and unusual conditions of confinement after, a prison
riot that occurred at the Tecumseh State Correctional Institution (“TSCI”) on May
10, 2015. On October 3, 2017, Defendants moved for summary judgment on the
basis of qualified immunity. (Filing No. 88, Case No. 8:15CV323; Filing Nos. 41

& 46, Case No. 4:17CV3047.) The motion was granted by the court in a
Memorandum and Order dated April 6, 2018, and a final judgment dismissing
Guerry’s action with prejudice was entered that same day. (Filing Nos. 112 & 113,
Case No. 8:15CV323; Filing Nos. 67 & 68, Case No. 4:17CV3047.)
Guerry appealed to the Eighth Circuit, which affirmed this court’s judgment
on January 23, 2019. (Filing Nos. 128 & 129, Case No. 8:15CV323; Filing Nos. 82
& 83, Case No. 4:17CV3047.) The Court of Appeals issued its mandate on March
13, 2019. (Filing No. 131, Case No. 8:15CV323; Filing No. 85, Case No.
4:17CV3047.)
Now pending before the court is Guerry’s Motion to Vacate Judgment on
Newly Discovered Evidence and Misconduct by an Adverse Party filed on March
15, 2019. (Filing No. 132, Case No. 8:15CV323; Filing No. 86, Case No.
4:17CV3047.) Along with his motion, Guerry also filed a Memorandum of Points
and Authorities and a declaration. (Filing Nos. 133 & 134, Case No. 8:15CV323;
Filing Nos. 87 & 88, Case No. 4:17CV3047.) For the reasons that follow, Guerry’s
motion will be denied.
I. SUMMARY OF MOTION
Guerry claims he has two newly discovered pieces of evidence. First, Guerry
alleges there is a report done by two experts concerning the May 10, 2015 riot at
TSCI which existed during the time summary judgment was rendered and which
Defendants withheld from the public and Guerry. Guerry alleges he learned of this
report on December 12, 2018,
on the law computer at 1:40 Pm, and it was Clayborne v. Frakes, Case
No. 8:15-CV-198 dated 12/12/18 [which] states; “[Clayborne] claims
he has newly discovered evidence in the form of a newspaper article
dated November 30, 2018 which discusses a Report prepared by two
experts concerning the May 10, 2015 riot at TSCI. [Clayborne] alleges
the report found the riot was sparked by several conditions that could
2

have been Addressed and Corrected, and was Withheld from the
Public and [Clayborne] and other attorney trying the riot case in
Federal and State Court.”
(Filing No. 134 at CM/ECF p. 2, ¶ 8 (internal brackets and emphasis omitted;
italics added; spelling corrected).)1 Guerry alleges the report was found by due
diligence after summary judgment was entered, could not have been discovered in
time to furnish grounds for a new trial under Fed. R. Civ. P. 59(b), and “is of such
material, and controlling nature that it would probably change the outcome of the
Summary Judgment that was rendered on April 6, 2018.” (Filing No. 133 at
CM/ECF p. 2, ¶ 7; see also Filing No. 132 at CM/ECF p. 1, ¶¶ 1, 5.)
The second piece of newly discovered evidence claimed by Guerry is
another piece of information he discovered via “the law computer” on December
12, 2018, in the records of
Clayborne v. Frakes, Case No. 8:15-CV-198 dated 7/13/2018 [which]
states; ‘[Clayborne] contends that because the log in sheet does not
list the name of James Jansen a non party employee who submitted an
affidavit in support of Defendants Motion for Summary Judgment[,]
Defendants were granted Qualified Immunity base[d] on False
Statements.”
(Filing No. 134 at CM/ECF p. 2, ¶ 6 (internal brackets and emphasis omitted;
italics added; spelling corrected).) Based on this, Guerry alleges that, because
James Jansen was not on the May 10, 2015 log-in sheet and Jansen submitted a
declaration (filing no. 90-2) in the present action in support of Defendants’
summary judgment motion,2 Defendants were also granted summary judgment
1

All references in this order to CM/ECF docket entries are to filings in Case No.
8:15CV323 (i.e., the “Lead Case”), unless otherwise specified.
In his declaration, Jansen stated that “[b]eginning at approximately 2:30pm on
May 10, 2015, and unfolding over the following several hours, a significant inmate
disturbance occurred at TSCI” and he “arrived at TSCI at approximately 3:15pm and
2

3

based on a false statement. (Filing No. 133 at CM/ECF p. 3, ¶ 13; see also Filing
No. 132.) Guerry further claims the submission of the “false” declaration
constitutes misconduct and “fraud on the court” warranting relief from judgment.
(Filing No. 133 at CM/ECF pp. 2–3, ¶¶ 11–14.)
The case referenced by Guerry, Clayborne v. Frakes, Case No. 8:15-CV198, is a case that was filed in this court by Robert Earl Clayborne, Jr., an inmate at
TSCI, on May 28, 2015, in which Clayborne also claimed Eighth Amendment
violations based on the May 10, 2015 riot. In that case, the defendant prison
officials were also granted summary judgment based on qualified immunity and
the Eighth Circuit affirmed that decision. (See Filing Nos. 57, 58, 73, & 74, Case
No. 8:15CV198.) Taking judicial notice of the court’s own records, it is evident
that Guerry is referring to two separate orders in Clayborne v. Frakes in which the
court denied Clayborne’s motions for relief from judgment under Rule 60(b) based
on the expert report and Jansen’s omission from the log-in sheet identified above.
(Filing Nos. 81 & 94, Case No. 8:15CV198.)
II. DISCUSSION
Guerry specifically seeks relief under subsections (2) and (3) of Rule 60(b)
of the Federal Rules of Civil Procedure. Rule 60 provides, in relevant part:
(b)

Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
...
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b);

remained there throughout the response until the facility was secured.” (Filing No. 90-2
at CM/ECF pp. 1–2, ¶¶ 4, 8.)

4

(3)

...
(6)

fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party; [or]
any other reason that justifies relief.

(c)

Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made
within a reasonable time—and for reasons (1), (2),
and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.
...

(d)

Other Powers to Grant Relief. This rule does not limit a
court’s power to:
...
(3) set aside a judgment for fraud on the court.

Fed. R. Civ. P. 60.
To prevail under Rule 60(b)(2), a moving party must demonstrate that: “(1)
the evidence was discovered after trial; (2) due diligence was exercised to discover
the evidence; (3) the evidence is material and not merely cumulative or
impeaching; and (4) the evidence is such that a new trial would probably produce a
different result.” U.S. Xpress Enterprises, Inc. v. J.B. Hunt Transp., Inc., 320 F.3d
809, 815 (8th Cir. 2003) (internal quotation omitted).
To prevail under Rule 60(b)(3), a moving party must demonstrate, “with
clear and convincing evidence, that the opposing party engaged in a fraud or
misrepresentation that prevented the movant from fully and fairly presenting its
case.” Harley v. Zoesch, 413 F.3d 866, 870 (8th Cir. 2005) (internal quotation
omitted).

5

In addition, Rule 60(b) “provides for extraordinary relief which may be
granted only upon an adequate showing of exceptional circumstances.” Jones v.
Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008) (internal quotation omitted). The
provisions of Rule 60(b) are “grounded in equity and exist[] to prevent the
judgment from becoming a vehicle of injustice.” Harley, 413 F.3d at 870 (internal
quotation omitted). It is well-established that Rule 60(b)(6) authorizes relief only
in the most exceptional of cases. In re Guidant Corp. Implantable Defibrillators
Prods. Liab. Litig., 496 F.3d 863, 866 (8th Cir. 2007). Relief under the catch-all
provision of the rule “is exceedingly rare as relief requires an ‘intrusion into the
sanctity of a final judgment.’” Id. at 868 (quoting Watkins v. Lundell, 169 F.3d
540, 544 (8th Cir. 1999)). Motions to vacate judgment are disfavored. Heim v.
Comm’r, 872 F.2d 245, 247 (8th Cir. 1989).
Here, Guerry’s motion pursuant to Rule 60(b)(2) and (3) is timely. However,
Guerry has failed to make an adequate showing of exceptional circumstances to
warrant relief under any provision of Rule 60(b).
In granting summary judgment, the court concluded Defendants were
entitled to qualified immunity “[b]ecause there is no evidence that any of the
Defendants were deliberately indifferent to Guerry’s health and safety, let alone
that they acted maliciously and sadistically for the very purpose of causing harm
while the prison riot was in progress” and the undisputed evidence did not establish
an Eighth Amendment conditions-of-confinement claim where there was no
proven adverse consequence to Guerry’s health and Guerry was not deprived of a
single human need during the four days he spent in the unsanitary cell. (Filing No.
112 at CM/ECF pp. 24, 27 (internal quotation omitted).) Guerry’s allegations
regarding the content of the experts’ report, and the withholding of the report, do
not suggest any facts demonstrating deliberate indifference by Defendants to
Guerry’s health and safety during the riot. Rather, Guerry’s allegations about the
report offer only mere speculation that prison officials may have taken steps to
address conditions contributing to the riot. The court concludes Guerry’s

6

allegations fail to demonstrate that the report is material or that it is likely to
produce a different result.
Similarly, Guerry’s speculation that an affidavit submitted in support of
Defendants’ motion for summary judgment contained a false statement, or that the
affiant did not have personal knowledge of the events described in the affidavit,
falls far short of clear and convincing evidence that Defendants engaged in any sort
of fraud or misrepresentation that prevented Guerry from fairly presenting his case.
Thus, Guerry has failed to demonstrate he is entitled to relief from judgment under
Rule 60(b)(3). Nor is Guerry entitled to relief under Rule 60(d)(3) for any
purported “fraud on the court.” The Eighth Circuit has “emphasized that fraud on
the court is distinct from mere fraud upon a party.” Superior Seafoods, Inc. v.
Tyson Foods, Inc., 620 F.3d 873, 878 (8th Cir. 2010). “Fraud on the court which
justifies vacating a judgment is narrowly defined as ‘fraud which is directed to the
judicial machinery itself and is not fraud between the parties or fraudulent
documents, false statements or perjury.’” United States v. Smiley, 553 F.3d 1137,
1144 (8th Cir. 2009) (quoting Bulloch v. United States, 763 F.2d 1115, 1121 (10th
Cir. 1985)). “Further, relief is only available where it would be ‘manifestly
unconscionable’ to allow the judgment to stand.” Superior Seafoods, 620 F.3d at
878 (quoting Griffin v. Fed. Deposit Ins. Corp., 831 F.2d 799, 802 (8th Cir. 1987)).
Guerry’s allegations regarding Jansen’s affidavit do not meet this high standard.
III. CONCLUSION
The court finds that Guerry has failed to demonstrate that he is entitled to
relief under Rule 60(b)(2) or (3) and that no exceptional circumstance exists for
granting relief under Rule 60(b)(6). The court also finds that Guerry has failed to
show that a fraud was committed on the court, and thus he is not entitled to any
relief under Rule 60(d)(3). Accordingly, Guerry’s request for relief from judgment
is denied.

7

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Vacate Judgment
on Newly Discovered Evidence and Misconduct by an Adverse Party (filing no.
132, Case No. 8:15CV323; filing no. 86, Case No. 4:17CV3047) is denied.3
Dated this 29th day of July, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

3

Plaintiff is hereby notified that the filing of a notice of appeal will make him
liable for payment of the full $505.00 appellate filing fee regardless of the outcome
of the appeal. This is because the Prison Litigation Reform Act requires an incarcerated
civil appellant to pay the full amount of the $505.00 appellate filing fee by making
monthly payments to the court, even if he or she is proceeding in forma pauperis. 28
U.S.C. § 1915(b). By filing a notice of appeal, Plaintiff will be consenting to the
deduction of the $505.00 filing fee from his prison account by prison officials.

8