United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION TO EXPAND
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
Kenneth Allan Fox (Fox) brought this § 1983 case to
assert that certain defendants violated his rights in
connection with a habeas petition in state court. Doc. 1.
This Court entered Judgment of Dismissal in this case back on
April 26, 2017. Doc. 9. The United States Court of Appeals
for the Eighth Circuit affirmed on February 7, 2018, finding
that the dismissal was without prejudice to any claim Fox
might have against the named defendants. Doc. 28. On August
16, 2018, Fox filed in this Court a Motion to Expand the
Record. Doc. 32. For the reasons stated below, Fox's
motion is denied.
Relevant Facts to this Motion
April 10, 2017, Fox brought this action pursuant to 42 U.S.C.
§ 1983, alleging that certain defendants refused to mail
his legal papers because he lacked money in his prison
account and that the state judge made erroneous rulings in
his state habeas case. Doc. 1. On April 26, 2017, this Court
ordered Fox's action dismissed for failure to state a
claim upon which relief may be granted. Doc. 8. Judgment of
Dismissal was entered on April 26, 2017. Doc. 9. On April 28,
2017, Fox filed a "clerical correction adjustment."
Doc. 10. On May 8, 2017, Fox filed a pleading and attachments
whereby he seemed to be requesting reconsideration of the
Court's ruling. See Doc. 11. This Court reviewed
Fox's post-dismissal filings and found that none of those
justified reconsideration or alteration of this Court's
Order and Judgment of Dismissal. See Docs. 8-9. Therefore,
this Court denied Fox's post-judgment motion. Doc. 12.
August 4, 2017, Fox appealed the orders dismissing his action
and denying his post-dismissal motion. Doc. 26. In affirming,
the United States Court of Appeals for the Eighth Circuit
reasoned that "[although the court expresses no view on
whether any claim is timely or has merit[, ] the district
court dismissal is without prejudice on any claim against
defendants Chief Warden Dooley, Associate Warden Allcock, and
C.O. Nyreen that is related to court access." Doc. 28 at
1. The Eighth Circuit affirmed this Court as modified. Doc.
28 at 2. On May 14, 2018, the Eighth Circuit denied Fox's
petition for rehearing. Doc. 29. Fox did not petition for a
writ of certiorari to the United States Supreme Court, so the
Judgement of Dismissal, as modified, is final.
Motion to Expand the Record filed August 16, 2018, Fox seeks
to expand the record to include all of his filings in this
case. Doc. 32. Of course, all of his filings in this case
already are part of the court record. Fox's goal appears
to be to have the order dismissing the case without prejudice
"vacated or reversed" so he can be given the
opportunity to be heard anew. Doc. 33 at 4. Fox's motion
also asks this Court for guidance on how to proceed, Doc. 32,
and his memorandum seeks to have Chief Judge Jeffrey Viken
assume responsibility for the case, Doc. 33.
Court dismissed the complaint, Doc. 9, and the Eighth Circuit
affirmed, viewing the dismissal as being without prejudice to
filing a new complaint. Doc. 28 at 2. If Fox believes this
Court and the Eighth Circuit erred, Fox could have filed a
petition for certiorari in the United States Supreme Court.
Fox did not do so. Fox does not have a right to appeal to
Chief Judge Viken. If Fox wishes to bring a new civil rights
action under § 1983, he may do so by filing a new
complaint. See Offbeat, Inc. v. Cager, No. CIV. A.
94-2796, 1995 WL 214479, at *1 (E.D. La. Apr., 11, 1995)
("[A]n Order dismissing a case without prejudice does
not allow the dismissed party simply to amend the complaint
at any later date in order to correct the deficiencies;
rather, the party must refile the case, pay a new filing fee,
and file a new complaint.").
certain circumstances, relief from a final judgment may be
possible under Federal Rule of Civil Procedure 60(b). Under
Rule 60(b), a court may relieve a party from a final judgment
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 an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it ...