United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
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).
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.
December 6, 2018, prior to issuance of a mandate from the
Court of Appeals, Plaintiff filed another Rule 60(b) motion
(Filing No. 93),  which is now before this court for
determination. The motion will be denied.
SUMMARY OF MOTION
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).
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.
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 ...