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Clayborne v. Franks

United States District Court, D. Nebraska

December 12, 2018

ROBERT EARL CLAYBORNE JR., Plaintiff,
v.
SCOTT FRAKES, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         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).

         II. DISCUSSION

         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 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 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 ...

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