United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on three motions filed by
Plaintiff: (1) Filing 26, a motion for extension of time to
respond to Defendants' motion for summary judgment, (2)
Filing 28, a motion for reconsideration of the court's
memorandum and order entered on April 8, 2019, and (3) Filing
29, a motion to preserve and enjoin spoliation of evidence.
filed a motion for summary judgment on February 28, 2019
(Filing 15). Defendants' supporting brief (Filing 17) and
evidentiary materials (Filing 18) were filed as provisionally
restricted access documents pursuant to Nebraska Civil Rule
5.3(c)(1), based on Defendants' concern that they
included protected health information regarding Plaintiff and
video footage from cameras within the Douglas County
Department of Corrections that could compromise security
within the institution if the location of the cameras was
publicly revealed. In a memorandum and order entered on April
8, 2019 (Filing 23), the court, among other things, directed
Defendants to file redacted copies of the documents and gave
Plaintiff until 21 days after such filing to respond to the
motion for summary judgment. Redacted copies of the documents
were filed on April 15, 2019 (Filings 24, 25).
10, 2019, Plaintiff filed a motion for extension of time
(Filing 26) with a supporting declaration (Filing 27), in
which he indicates that the CD containing the video footage
was confiscated as contraband by officials at the Tecumseh
State Correctional Institution, who also notified him that he
could not be provided equipment to view the CD. Defense
counsel has since been in communication with appropriate
officials and, on June 5, 2019, received notice that the
Director of the Department of Correctional Services would
facilitate Plaintiff's request to view the CD (Filings
32, 33, 34). That being the case, the court will grant
Plaintiff a limited extension of time, until July 8, 2019, to
respond to Defendants' motion for summary judgment.
May 10, 2019, Plaintiff filed a motion for reconsideration of
the court's memorandum and order that was entered on
April 8, 2019. In that order, the court granted in part and
denied in part (1) Defendants' motion to restrict access
(Filing 16) and (2) Plaintiff's motion for miscellaneous
relief (Filing 19).
‘motion for reconsideration' is not described in
the Federal Rules of Civil Procedure, but such a motion is
typically construed either as a Rule 59(e) motion to alter or
amend the judgment or as a Rule 60(b) motion for relief from
judgment.” Auto Servs. Co. v. KPMG, LLP, 537
F.3d 853, 855 (8th Cir. 2008) (citing Sanders v. Clemco
Indus., 862 F.2d 161, 168 (8th Cir. 1988)). The Eighth
Circuit Court of Appeals has stated that “motions for
reconsideration are ‘nothing more than Rule 60(b)
motions when directed at non-final orders.' ”
Elder-Keep v. Aksamit, 460 F.3d 979, 985 (8th Cir.
2006) (quoting Anderson v. Raymond Corp., 340 F.3d
520, 525 (8th Cir. 2003)).
Plaintiff's motion is directed to a non-final order, the
Court reviews it under Rule 60(b). A Rule 60(b) motion,
brought as a motion for reconsideration, “is not a
vehicle for simple reargument on the merits, ” even
where the movant reargues the merits “somewhat more
fully.” Broadway v. Norris, 193 F.3d 987,
989-90 (8th Cir. 1999). Rule 60(b) only “authorizes
relief based on certain enumerated circumstances (for
example, fraud, changed conditions, and the like).”
Id. at 990. A motion under Rule 60(b) is to
“serve a limited function: to correct manifest errors
of law or fact or to present newly discovered
evidence.” Arnold v. ADT Sec. Servs., Inc.,
627 F.3d 716, 721 (8th Cir. 2010) (quoting Hagerman v.
Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988))
(internal quotation marks omitted).
there is no allegation of mistake, inadvertence, surprise,
excusable neglect, fraud, or changed condition; and no
suggestion of legal error by the court. Because Plaintiff
does not identify an enumerated reason for the court to grant
his motion, he must rely on the catch-all provision of Rule
60(b)(6), affording relief from an order for “any other
reason that justifies relief.” The court concludes,
however, that Plaintiff's arguments do not justify the
“extraordinary remedy” of relief under Rule
60(b). See Hunter v. Underwood, 362 F.3d 468, 475
(8th Cir. 2004). His motion for reconsideration therefore
will be denied.
third filing on May 10, 2019, Plaintiff seeks an order
requiring Defendants to preserve the video footage in its
original condition. The motion will be denied.
court finds Plaintiff has made no showing that video footage
has been destroyed or altered in any manner.See Rivera v.
Frakes, No. 4:16CV3180, 2017 WL 1450584, at *4 (D. Neb.
Apr. 24, 2017) (denying prisoner's request for an
injunction to prevent defendants from destroying video
evidence); Rosa v. Morvant, 2007 WL 120808, at *2
(E.D. Tex. 2007) (denying preliminary injunction motion by
prisoner to prohibit destruction of medical records by prison
officials where plaintiff failed to show defendants were
likely to destroy evidence); S.E.C. v. Nadel, 1991
WL 427892, at *2 (S.D. Fla. 1991) (denying plaintiff's
motion to enjoin defendants from destroying evidence because
defendants had a general duty to preserve evidence and
plaintiff did not bring forth any evidence suggesting
defendants were likely to destroy evidence). Further,
“a district court could impose many different kinds of
sanctions for spoliated evidence, ...