Clayborne v. Tecumseh Department of Corrections et al

Filing 81

ORDER denying 79 Motion for Evidentiary Hearing and denying 80 Rule 60 Motion for relief from judgment. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se plaintiff)(CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT EARL CLAYBORNE JR.,
Plaintiff,
v.
SCOTT FRAKES, et al.,
Defendants.

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8:15CV198

MEMORANDUM
AND ORDER

Plaintiff, Robert Earl Clayborne, Jr., an inmate at the Tecumseh State
Correctional Institution (“TSCI”), filed this § 1983 action on May 28, 2015, seeking
to recover monetary damages from several prison officials for allegedly violating
Plaintiff’s Eighth Amendment rights by failing to protect his safety during a prison
riot that occurred at TSCI on May 10, 2015 (Filing No. 1). On August 12, 2016,
Defendants moved for summary judgment on the basis of qualified immunity (Filing
No. 50). The motion was granted by the court in a memorandum and order dated
October 27, 2016 (Filing No. 57), and a final judgment dismissing Plaintiff’s action
with prejudice was entered that same day (Filing No. 58).
Plaintiff appealed to the Eighth Circuit, which affirmed this court’s judgment
on November 1, 2017 (Filing Nos. 73, 74). The Court of Appeals issued its mandate
on November 28, 2017 (Filing No. 75). Plaintiff then filed a petition for a writ of
certiorari on November 29, 2017 (Filing No. 76), which was denied by the Supreme
Court on May 14, 2018 (Filing No. 78).
Now pending before the court are two motions that were filed by Plaintiff on
June 15, 2018: (1) a motion for relief from judgment, pursuant to Rule 60 of the
Federal Rules of Civil Procedure (Filing No. 80); and (2) a motion for an evidentiary
hearing (Filing No. 79). Both motions will be denied.

I. SUMMARY OF MOTIONS
Plaintiff claims he has newly discovered evidence in the form of a log-in sheet
that lists the names of TSCI staff members who were on duty at the prison on May 10,
2015, between 2:00 pm and 10:00 pm. Plaintiff states the log-in sheet was sent to him
by Defendants’ attorney of record on July 12, 2016 (one month prior to the filing of
Defendants’ motion for summary judgment). Plaintiff contends that because the log-in
sheet does not list the name of James Jensen, a non-party TSCI employee who
submitted an affidavit in support of Defendants’ motion for summary judgment,1
Defendants were granted qualified immunity based on false statements. Plaintiff
requests an evidentiary hearing in order to prove that the log-in sheet is newly
discovered evidence. Plaintiff states he is impaired by mental disorders, and has
provided a copy of a 2010 Social Security determination that he was then disabled by
reason of depression and disc disease.
II. DISCUSSION
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:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; [or]
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Jensen stated in his affidavit that on May 10, 2015, he “was called into work
after a staff member was assaulted and inmates were refusing to lock down.” (Filing
No. 52-1, at CM/ECF p. 2)
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(6) 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.
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(d) Other Powers to Grant Relief. This rule does not limit a court’s
power to:
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(3) set aside a judgment for fraud on the court.
Fed. R. Civ. P. 60.
Because the court’s judgment was entered on October 7, 2016, more than one
year before Plaintiff filed his Rule 60 motion, no relief is available under subsections
(b)(1), (2), and (3). See Fed. R. Civ. P. 60(c)(1). “[T]he one-year limitations period is
not tolled during the pendency of an appeal.” Greene v. Gassman, No. 11-CV-0618
PJS/TNL, 2014 WL 1775789, at *1 (D. Minn. May 5, 2014) (citing Nevitt v. United
States, 886 F.2d 1187, 1188 (9th Cir.1989) (compiling cases)).
Nor can Plaintiff avoid the one-year time limit for motions based on Rule
60(b)(2) by asserting Rule 60(b)(6) as the basis for relief. See United States v. Dakota
Cheese, Inc. (In re Matter of a Grand Jury Subpoena Directed to Dakota Cheese,
Inc.), 923 F.2d 576, 577 (8th Cir. 1991) (motion based on newly discovered evidence
is governed by Rule 60(b)(2) and may not be brought after one year under Rule
60(b)(6)). “The provisions of Rule 60(b) are mutually exclusive, and if the reason
offered for relief falls under on[e] of the more specific subsections of Rule 60(b)(1)(5), the reason will not justify relief under the catch-all provision of 60(b)(6).”
McPherson v. Frakes, No. 8:15CV162, 2018 WL 671169, at *2 (D. Neb. Jan. 31,
2018) (quoting Fuller v. United States, No. 4:07-CV-34 CAS, 2013 WL 3480303, at

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*8 (E.D. Mo. July 10, 2013) (citing Liljeberg v. Health Servs. Corp., 486 U.S. 847,
863 n. 11 (1988)).
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). The provisions of Rule 60(b) are grounded in equity
and exist to prevent the judgment from becoming a vehicle of injustice. Harley v.
Zoesch, 413 F.3d 866, 870 (8th Cir.2005). 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)). Plaintiff’s claimed mental impairment is
not an “exceptional circumstance” that would provide grounds for setting aside the
court’s final judgment.
Similarly, Plaintiff cannot rely on Rule 60(d)(3) to avoid the one-year time limit
for seeking relief under Rule 60(b)(3) for fraud, misrepresentation, or misconduct by
an opposing party. 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)). Plaintiff’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, does not meet this high standard.
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III. CONCLUSION
The court finds that Plaintiff’s requests for relief under Rule 60(b)(1), (2), and
(3) are untimely, and that no exceptional circumstance exists for granting relief under
Rule 60(b)(6). The court also finds that Plaintiff 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).
Finally, the court finds that an evidentiary hearing is not needed with respect to any
issue raised by Plaintiff, and would be of no benefit.
IT IS THEREFORE ORDERED:
1. Plaintiff’s motion for an evidentiary hearing (Filing No. 79) is denied
2. Plaintiff’s Rule 60 motion for relief from judgment (Filing No. 80) is
denied.2
DATED this 13th day of July, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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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.
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