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Guerry v. Frakes

United States District Court, D. Nebraska

July 29, 2019

BRIAN FRANK GUERRY, Plaintiff,
v.
SCOTT FRAKES, Director; BRIAN GAGE, Warden; GUIFFRE, Worker; and THOMPSON, Worker; Defendants. BRIAN FRANK GUERRY, Plaintiff,
v.
SCOTT FRAKES, in his individual capacity; FRANK HOPKINS, in his individual capacity; BRIAN GAGE, in his individual capacity; et al.; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         In these consolidated actions, Plaintiff Brian Frank Guerry (“Guerry” or “Plaintiff”) sought monetary damages against several prison officials for allegedly violating Guerry's Eighth Amendment rights by failing to protect his safety during, and subjecting him to cruel and unusual conditions of confinement after, a prison riot that occurred at the Tecumseh State Correctional Institution (“TSCI”) on May 10, 2015. On October 3, 2017, Defendants moved for summary judgment on the basis of qualified immunity. (Filing No. 88, No. 8:15CV323; Filing Nos. 41 & 46, No. 4:17CV3047.) The motion was granted by the court in a Memorandum and Order dated April 6, 2018, and a final judgment dismissing Guerry's action with prejudice was entered that same day. (Filing Nos. 112 & 113, No. 8:15CV323; Filing Nos. 67 & 68, No. 4:17CV3047.)

         Guerry appealed to the Eighth Circuit, which affirmed this court's judgment on January 23, 2019. (Filing Nos. 128 & 129, No. 8:15CV323; Filing Nos. 82 & 83, No. 4:17CV3047.) The Court of Appeals issued its mandate on March 13, 2019. (Filing No. 131, No. 8:15CV323; Filing No. 85, No. 4:17CV3047.)

         Now pending before the court is Guerry's Motion to Vacate Judgment on Newly Discovered Evidence and Misconduct by an Adverse Party filed on March 15, 2019. (Filing No. 132, No. 8:15CV323; Filing No. 86, No. 4:17CV3047.) Along with his motion, Guerry also filed a Memorandum of Points and Authorities and a declaration. (Filing Nos. 133 & 134, No. 8:15CV323; Filing Nos. 87 & 88, No. 4:17CV3047.) For the reasons that follow, Guerry's motion will be denied.

         I. SUMMARY OF MOTION

         Guerry claims he has two newly discovered pieces of evidence. First, Guerry alleges there is a report done by two experts concerning the May 10, 2015 riot at TSCI which existed during the time summary judgment was rendered and which Defendants withheld from the public and Guerry. Guerry alleges he learned of this report on December 12, 2018,

on the law computer at 1:40 Pm, and it was Clayborne v. Frakes, No. 8:15-CV-198 dated 12/12/18 [which] states; “[Clayborne] 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. [Clayborne] 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 [Clayborne] and other attorney trying the riot case in Federal and State Court.”

(Filing No. 134 at CM/ECF p. 2, ¶ 8 (internal brackets and emphasis omitted; italics added; spelling corrected).)[1] Guerry alleges the report was found by due diligence after summary judgment was entered, could not have been discovered in time to furnish grounds for a new trial under Fed.R.Civ.P. 59(b), and “is of such material, and controlling nature that it would probably change the outcome of the Summary Judgment that was rendered on April 6, 2018.” (Filing No. 133 at CM/ECF p. 2, ¶ 7; see also Filing No. 132 at CM/ECF p. 1, ¶¶ 1, 5.)

         The second piece of newly discovered evidence claimed by Guerry is another piece of information he discovered via “the law computer” on December 12, 2018, in the records of

Clayborne v. Frakes, No. 8:15-CV-198 dated 7/13/2018 [which] states; ‘[Clayborne] contends that because the log in sheet does not list the name of James Jansen a non party employee who submitted an affidavit in support of Defendants Motion for Summary Judgment[, ] Defendants were granted Qualified Immunity base[d] on False Statements.”

(Filing No. 134 at CM/ECF p. 2, ¶ 6 (internal brackets and emphasis omitted; italics added; spelling corrected).) Based on this, Guerry alleges that, because James Jansen was not on the May 10, 2015 log-in sheet and Jansen submitted a declaration (filing no. 90-2) in the present action in support of Defendants' summary judgment motion, [2] Defendants were also granted summary judgment based on a false statement. (Filing No. 133 at CM/ECF p. 3, ¶ 13; see also Filing No. 132.) Guerry further claims the submission of the “false” declaration constitutes misconduct and “fraud on the court” warranting relief from judgment. (Filing No. 133 at CM/ECF pp. 2-3, ¶¶ 11-14.)

         The case referenced by Guerry, Clayborne v. Frakes, No. 8:15-CV-198, is a case that was filed in this court by Robert Earl Clayborne, Jr., an inmate at TSCI, on May 28, 2015, in which Clayborne also claimed Eighth Amendment violations based on the May 10, 2015 riot. In that case, the defendant prison officials were also granted summary judgment based on qualified immunity and the Eighth Circuit affirmed that decision. (See Filing Nos. 57, 58, 73, & 74, No. 8:15CV198.) Taking judicial notice of the court's own records, it is evident that Guerry is referring to two separate orders in Clayborne v. Frakes in which the court denied Clayborne's motions for relief from judgment under Rule 60(b) based on the expert report and Jansen's omission from the log-in sheet identified above. (Filing Nos. 81 & 94, No. 8:15CV198.)

         II. DISCUSSION

         Guerry specifically seeks relief under subsections (2) and (3) of Rule 60(b) of the Federal Rules of Civil Procedure. ...


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