McNeil v. United States of America
MEMORANDUM AND ORDER - Plaintiff's Objection (filing no. 12 ) and Motion to Correct Judgment (filing no. 13 ) are denied. Plaintiff's request for leave to proceed on appeal in forma pauperis (filing no. 13 ) is denied without prejudice to reassertion before the Eighth Circuit Court of Appeals. The Clerk of the court is directed to send a copy of this order to the Eighth Circuit Court of Appeals. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMAAL A. MCNEIL,
UNITED STATES OF AMERICA,
This matter is before the court on Plaintiff’s Objection (filing no. 12), Motion
to Correct Judgment (filing no. 13) and Notice of Appeal (filing no. 14). The court
dismissed this matter with prejudice and entered Judgment on February 13, 2014.
(Filing Nos. 10 and 11.)
OBJECTION AND MOTION TO CORRECT JUDGMENT
Plaintiff has filed an Objection and a Motion to Correct the court’s February
13, 2014, Order and Judgment. (Filing Nos. 12 and 13.) Liberally construed,
Plaintiff seeks relief from the Judgment under Federal Rules of Civil Procedure 59(e)
and 60(b)(6). (Id.)
“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
Rule 60(b)(6) “grants federal courts broad authority to relieve a party from a
final judgment ‘upon such terms as are just,’ provided that the motion is made within
a reasonable time and is not premised on one of the grounds for relief enumerated in
clauses (b)(1) through (b)(5).” Liljeberg v. Health Serv. Acquisition Corp., 486 U.S.
847, 863 (1988). However, “[r]elief is available under Rule 60(b)(6) only where
exceptional circumstances have denied the moving party a full and fair opportunity
to litigate his claim and have prevented the moving party from receiving adequate
redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005).
The court has carefully reviewed Plaintiff’s Objection and Motion and finds
that he is not entitled to relief under Rule 59(e) or Rule 60(b)(6).
In his Objection, Plaintiff mentions that he would like to proceed in forma
pauperis. (Filing No. 12.) Plaintiff has also filed a timely Notice of Appeal. (Filing
No. 14.) However, as set forth in the Prison Litigation Reform Act, a prisoner cannot:
[B]ring a civil action or appeal a judgment in a civil action or
proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.
28 U.S.C. §1915(g).
Plaintiff brought the following three cases that were dismissed because they
failed to state a claim upon which relief may be granted:
McNeil v. Public Defender Office, No. 4:06CV3204 (D. Neb.),
dismissed on September 5, 2006. (Case No. 4:06CV3204, Filing Nos. 5
McNeil v. City of Omaha, et al., No. 8:07CV145 (D. Neb.), dismissed on
May 16, 2007. (Case No. 8:07CV145, Filing Nos. 12 and 13.)
McNeil v. City of Omaha, et al., No. 8:07CV143 (D. Neb.), dismissed on
August 26, 2008. (Case No. 8:07CV143, Filing Nos. 53 and 54.)
Plaintiff has not shown that he faces an imminent danger of serious physical
injury, nor has he paid the filing fee for his appeal. Accordingly,
IT IS THEREFORE ORDERED that:
Plaintiff’s Objection (filing no. 12) and Motion to Correct Judgment
(filing no. 13) are denied.
Plaintiff’s request for leave to proceed on appeal in forma pauperis
(filing no. 13) is denied without prejudice to reassertion before the Eighth Circuit
Court of Appeals.
The Clerk of the court is directed to send a copy of this order to the
Eighth Circuit Court of Appeals.
DATED this 11th day of March, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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