Clayborne v. Tecumseh Department of Corrections et al
MEMORANDUM AND ORDER - that Plaintiff's motion for relief from judgment (Filing No. 93 ) is denied. 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
ROBERT EARL CLAYBORNE JR.,
SCOTT FRAKES, et al.,
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).
On June 15, 2018, Plaintiff filed two motions in this court: (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). Plaintiff
claimed he had newly discovered evidence which indicated a false affidavit had been
submitted in support of Defendants’ motion for summary judgment. Both motions
were denied in a memorandum order entered on July 13, 2018 (Filing No. 81). This
court determined that Plaintiff’s requests for relief under Rule 60(b)(1), (2), and (3)
were untimely, and that he was not entitled to any relief under Rule 60(b)(6) or Rule
60(d)(3). Plaintiff appealed, and the Eighth Circuit summarily affirmed this court’s
judgment on November 15, 2018 (Filing No. 92).
On December 6, 2018, prior to issuance of a mandate from the Court of
Appeals, Plaintiff filed another Rule 60(b) motion (Filing No. 93),1 which is now
before this court for determination. The motion will be denied.2
I. SUMMARY OF MOTION
Plaintiff 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. Plaintiff alleges the report found the riot
was “sparked by several conditions that could have been addressed and corrected,”
and “was withheld from the public and the plaintiff and other attorneys trying the Riot
Case in Federal & State Courts” (Filing No. 93 at p. 2).
Plaintiff specifically seeks relief under subsections (2) and (3) of Rule 60(b).
As Plaintiff has previously been told, a Rule 60(b) motion based on reasons stated in
Filing No. 93 is designated by Plaintiff as a “Federal rule 60b) motion for new
trial.” Plaintiff specifies he is seeking relief “under Rule 60(b) of the FRCP(2)(3)” and
he recites the language of Rule 60(b)(2) and (3). (Filing No. 93 at p. 1). The motion
concludes with Plaintiff “request[ing] this court to grant his motion, relieve him from
the States grant of Summary Judgment on the grounds of fraud, misrepresentation, or
misconduct and newly discovered evidence and grant the Plaintiff a new trial.” (Filing
No. 93 at pp. 2-3).
Eighth Circuit case law “permits the district court to consider a Rule 60(b)
motion on the merits and deny it even if an appeal is already pending in [the Court of
Appeals], and a separate appeal may thereafter be taken to challenge the denial.”
Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).
these subsections must be made “no more than a year after the entry of the judgment
or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Plaintiff’s motion
therefore is untimely, and this court can grant him no relief.
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
(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
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; [or]
(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
(d) Other Powers to Grant Relief. This rule does not limit a court’s
(3) set aside a judgment for fraud on the court.
Fed. R. Civ. P. 60.
Because the court’s judgment was entered on October 27, 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
*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 allegations regarding the
content of the experts’ report, and the withholding of the report, do not show the
existence of any exceptional circumstances.
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)). The alleged withholding of the experts’ report
would not constitute fraud on the court and it would not be manifestly unconscionable
to allow the judgment to stand in light of the report.
Finally, to the extent Plaintiff may be relying upon Rule 59 of the Federal Rules
of Civil Procedure by requesting a new trial, such a request is also untimely. “A
motion for a new trial must be filed no later than 28 days after the entry of judgment.”
Fed. R. Civ. P. 59(b). Likewise, “[a] motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
The court finds Plaintiff’s motion for relief from judgment under Rule 60(b)(2)
and (3) is time-barred, and there are no grounds for granting Plaintiff relief under any
other provision of Rule 60. A Rule 59 motion for new trial or motion to alter or amend
judgment would also be untimely.
IT IS ORDERED that Plaintiff’s motion for relief from judgment (Filing No.
93) is denied.3
DATED this 12th day of December, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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
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