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Cotton v. Douglas County

United States District Court, D. Nebraska

June 6, 2019

JAMES COTTON, Plaintiff,
v.
DOUGLAS COUNTY, NEBRASKA, CORRECTIONS OFFICER STEVENS, and CORRECTIONS OFFICER ESTEVEZ, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This 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.

         (1) Filing 26

         Defendants 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).

         On May 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.

         (2) Filing 28

         Also on 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).

         “A ‘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)).[1]

         Because 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).

         Here, 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.

         (3) Filing 29

         In a 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.

         The court finds Plaintiff has made no showing that video footage has been destroyed or altered in any manner.[2]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, ...


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