Fox v. State of South Dakota et al

Filing 34

OPINION AND ORDER denying 32 Motion to Expand Record. Signed by U.S. District Judge Roberto A. Lange on 8/31/18. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

KENNETH ALLAN FOX,

3:17-CV-03008-RAL

Plaintiff,
OPINION AND ORDER
DENYING MOTION

vs.

STATE OF SOUTH DAKOTA, CHIEF WARDEN

DOOLEY,CHIEF WARDEN AT SOUTH
DAKOTA STATE PENITENTIARY,OFFICIAL

CAPACITY; STATE PENITENTIARY,
JUDICIARY OF SOUTH DAKOTA SYSTEM,
ASSOCIATE WARDEN ALLCOCK,
ASSOCIATE WARDEN AT SIOUX FALLS

PENITENTIARY, OFFICIAL CAPACITY;
CHIEF GILBERTSON,JUSTICE CHIEF AT
STATE SUPREME COURT,INDIVIDUALLY
AND OFFICIAL CAPACITY; CO NYREEN,
CORRECTION OFFICER AT JAMESON ANNEX

PRISON,INDIVIDUALLY AND OFFICIAL
CAPACITY; MARTY JACKLEY, ATTORNEY
GENERAL AT STATE OF SOUTH DAKOTA,
OFFICIAL CAPACITY;POKE KINSMAN,
STATE TREASURER AT STATE OF SOUTH

DAKOTA,OFFICIAL CAPACITY; BRENT
KEMPEMA,ASSISTANT STATE ATTYY
GENERAL AT STATE OF SOUTH DAKOTA
ATTORNEY GENERAL OFFICE, OFFICIAL

CAPACITY; JAMIE DAMON,ATTORNEY,
SELF-EMPLOYED STATE LICENSED

ATTORNEY AT PIERRE,SD PRIVATE

PRACTICE,INDIVIDUAL AND OFFICIAL
CAPACITY; AND AGENT BUSHKO,
ARRESTING &INTERROGATING
AGENT AT UNKNOWN GOVERNMENT

AGENCY,INDIVIDUAL AND OFFICIAL
CAPACITY;
Defendants.

TO EXPAND RECORD

Petitioner Kenneth Allan Fox (Fox)brought this § 1983 case to assert that certain defendants

violated his rights in connection with a habeas petition in state court. Doc. 1. This Court entered

Judgment ofDismissal in this case back on April 26,2017. Doc.9. The United States Court ofAppeals
for the Eighth Circuit affirmed on February 7, 2018,finding that the dismissal was without prejudice

to any claim Fox might have against the named defendants. Doc. 28. On August 16, 2018, Fox filed
in this Court a Motion to Expand the Record. Doc. 32. For the reasons stated below. Fox's motion is
denied.

I.

Relevant Facts to this Motion

On April 10, 2017, Fox brought this action pursuant to 42 U.S.C. § 1983, alleging that certain
defendants refused to mail his legal papers because he lacked money in his prison account and that the

state judge made erroneous rulings in his state habeas case. Doc. 1. On April 26, 2017, this Court
ordered Fox's action dismissed for failure to state a claim upon which relief may be granted. Doc. 8.

Judgment ofDismissal was entered on April 26,2017. Doc.9. On April 28,2017,Fox filed a clerical
correction adjustment." Doc. 10. On May 8, 2017, Fox filed a pleading and attachments whereby he
seemed to be requesting reconsideration of the Court's ruling. ^Doc. 11. This Court reviewed

Fox's post-dismissal filings and found that none ofthose justified reconsideration or alteration ofthis
Court's Order and Judgment of Dismissal.

Docs. 8-9. Therefore, this Court denied Fox s post-

judgment motion. Doc. 12.

On August 4, 2017, Fox appealed the orders dismissing his action and denying his postdismissal motion. Doc. 26. In affirming, the United States Court of Appeals for the Eighth Circuit

reasoned that "[ajlthough the court expresses no view on whether any claim is timely or has merit[,]
the district court dismissal is without prejudice on any claim against defendants Chief Warden Dooley,

Associate Warden Allcock, and C.O. Nyreen that is related to court access." Doc. 28 at 1. The Eighth
Circuit affirmed this Court as modified. Doc. 28 at 2. On May 14, 2018, the Eighth Circuit denied

Fox's petition for rehearing. Doc. 29. Fox did not petition for a writ of certiorari to the United States
Supreme Court, so the Judgement of Dismissal, as modified, is final.
In his Motion to Expand the Record filed August 16, 2018, Fox seeks to expand the record to
include all of his filings in this case. Doe. 32. Of course, all of his filings in this case aheady are part
of the court record. Fox's goal appears to be to have the order dismissing the case without prejudice
"vacated or reversed" so he can be given the opportunity to be heard anew. Doc. 33 at 4. Fox's motion

also asks this Court for guidance on how to proceed. Doc. 32, and his memorandum seeks to have
Chief Judge Jeffrey Viken assume responsibility for the ease. Doc. 33.
II.

Analysis

This Court dismissed the complaint. Doc. 9, and the Eighth Circuit affirmed, viewing the

dismissal as being without prejudice to filing a new complaint. Doc.28 at 2. IfFox believes this Court
and the Eighth Circuit erred. Fox could have filed a petition for certiorari in the United States Supreme
Court. Fox did not do so. Fox does not have a right to appeal to Chief Judge Viken. If Fox wishes to

bring a new civil rights action under § 1983, he may do so by filing a new complaint. S^ Offbeat.
Inc. V. Cager. No. CIV. A. 94-2796, 1995 WL 214479, at *1 (E.D. La. Apr.41, 1995)("[A]n Order

dismissing a case without prejudice does not allow the dismissed party simply to amend the complaint
at any later date in order to correct the deficiencies; rather, the party must refile the ease, pay a new
filing fee, and file a new complaint.").
Under certain circumstances, relief from a final judgment may be possible under Federal Rule

of Civil Procedure 60(b). Under Rule 60(b), a court may relieve a party from a final judgment 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;

(4)the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). However, "[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 ofthe judgment or order or
the date ofthe proceeding." Fed. R. Civ. P. 60(c); see also Fed. R. Civ. P. 59(e)("A motion to alter or
amend ajudgment must be filed no later than 28 days after the entry ofthe judgment."); Pom v. State
Rank of Stella. 767 F.2d 442,443(8th Cir. 1985)(holding that the district court did not err in denying

plaintiffs motion for leave to file an amended complaint three months after fmal judgment).
Here, Fox argues that this Court should consider "the entire amount ofletters and submissions

to [the] district court" and vacate its previous dismissal. Doc. 32 at 1. The only applicable rule that
could be argued that applies is Rule 60(b)(6), where a party can seek relief for "any other reason that

justifies relief within a reasonable time of the fmal judgment. Fed. R. Civ. P. 60(b)(6), (c). Under
Rule 60(b)(6), reliefis only available "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." Harlev v. Zoesch. 413 F.3d 866, 871 (8th Cir. 2005). This motion comes over one

year after the entry ofjudgment by this Court, Doc. 9, and six months after entry ofjudgment by the
circuit court. Doc.28. The issues raised in this motion existed at the time ofjudgment and were already

subject to review on direct appeal. Fox has not offered a reason tojustify his delayed filing or presented
exceptional circumstances which make relief under Rule 60(b)(6) appropriate.

Doc. 33.

Fox also moves this Court to expand the record to include letters and other submissions made
in this case. Doc. 32 at 1. Fox has filed various letters on Case Management/Electronic Case Files

(CM/ECF). By filing these documents, the filings are already in the record, so his motion is moot.
Therefore, it is

ORDERED that Fox's Motion to Expand the Record, Doc. 32, is denied. It is further

ORDERED that the Clerk of Court mail a copy of this order to Fox together with the form for
filing a new 42 U.S.C. § 1983 complaint if that is how he wishes to proceed.

DATED this 31*^ day of August, 2018.
BY THE COURT:

ROBERTO A. LANGI
UNITED STATES DISTRICT JUDGE