United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District
Eva Marie Fisher, a prisoner being held at the Douglas County
Department of Corrections in Omaha, Nebraska, filed her
Complaint on November 15, 2018, and subsequently was granted
leave to proceed in forma pauperis. The court conducted an
initial review of Plaintiff's Complaint and, in a
Memorandum and Order entered on December 10, 2018 (Filing 9),
determined that summary dismissal was appropriate under 28
U.S.C. §§ 1915(e)(2) and 1915A because the court
lacked jurisdiction over the claims alleged. On its own
motion, however, the court gave Plaintiff 30 days to file an
Amended Complaint in order to assert claims against
Defendants Rupton, Bollinger, Cottrell, and Franklin in their
responded with correspondence that was received on December
10, 2018, in which Plaintiff stated: “You can just go
ahead [and] dismiss case #8:18c00538, ... I should never have
filed this civil action ... in the first place.”
(Filing 11) The court treated this letter as a motion to
dismiss, filed pursuant to Fed.R.Civ.P. 41(a), and on
December 20, 2018, entered judgment dismissing the action
without prejudice. (Filings 12, 13)
matter is now before the court on a letter from Plaintiff
dated December 27, 2018, and received on January 2, 2019, in
which Plaintiff states:
you to reinstate the charges against Jody R. Upton,
Timothy Bolinger, Mr. Cottrell, and I. Franklin. When I asked
you to dismiss the charges I was just scared. Please give me
a little more time as it is difficult for me to think about
those horrible times @ F.M.C. Carswell.
request to reopen this case will be denied. Even liberally
construing her correspondence as a motion for relief from
judgment, filed pursuant to Fed.R.Civ.P. 60(b), the court
finds Plaintiff has not made a sufficient showing for setting
aside her voluntary dismissal.
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)).
v. Frakes, No. 8:15CV198, 2018 WL 6529489, at *2 (D.
Neb. Dec. 12, 2018).
apparent change of heart regarding her desire to prosecute
this action does not constitute an “exceptional
circumstance.” Also, Plaintiff has not provided the
court with a proposed Amended Complaint or otherwise
demonstrated that she is able to state a claim upon which
relief may be granted. In any event, the court's judgment
dismissing this action without prejudice does not preclude
Plaintiff from filing a new action against the individual
Defendants. As a prisoner, however, Plaintiff will be
obligated to pay a separate filing fee for a new action even
if she is again granted leave to proceed in forma pauperis.
IT IS ORDERED that Plaintiff's motion for relief from
judgment (Filing 14) is denied.
 Plaintiff notified the court in a
letter received on December 10, 2018, that the true name of
the Defendant identified as “Jody Rupton” is