United States District Court, C.D. Illinois
December 7, 2005.
CEDRIC DUPREE, Plaintiff,
GUY PIERCE, et. al., Defendants.
The opinion of the court was delivered by: HAROLD BAKER, District Judge
This cause is before the court for case management and
consideration of the plaintiff's motion for reconsideration of
the court's April 6, 2005 dismissal order [d/e 9], motion to
proceed in forma pauperis on appeal [d/e 12], motion for an order
[d/e 19] and motion to expedite. [d/e 20]
On March 1, 2005, the court struck the plaintiff's initial
complaint as a violation of Rule 8 of the Federal Rules of Civil
Procedure. See March 1, 2005 Court Order. The plaintiff's
complaint was a rambling 42 page document filed pursuant to
42 U.S.C. § 1983 and state tort and negligence law against 62
individual defendants. The court could not clearly discern what
claims the plaintiff intended to allege against which defendants.
The court therefore gave the plaintiff until March 23, 2005 to
file an amended complaint. The plaintiff was also given specific
instructions to follow in filing his amended complaint. Lastly,
the plaintiff was admonished that "[i]f the plaintiff fails to
file an amended complaint within this time frame, his case will
be dismissed. If the plaintiff fails to follow the guidelines
specifically spelled out in this order, his case may also be
dismissed." March 1, 2005 Court Order, p. 2. The plaintiff failed
to respond to the court's order and on April 6, 2003 his case was
The plaintiff then filed a motion to reconsider the dismissal
order [d/e 9] and filed a notice of appeal challenging the
dismissal order. [d/e 11] The court stated in a September 14,
2005 text order that it no longer had jurisdiction over the
plaintiff's motion to reconsider. This was incorrect. See
Federal Rule of Appellate Procedure 4(a). "[A] timely motion
under Rule 59(e) suspends the time for appealing, and a notice of
appeal filed while such a motion is pending is premature."
Katerinos v. United States Department of the Treasury,
368 F. 3d 733, 737 (7th Cir. 2004). Therefore, the court will
instruct the clerk of the court to reinstate the plaintiff's
motion to reconsider and it will now consider plaintiff's motion
MOTION TO RECONSIDER
The plaintiff has filed a motion to reconsider the court's
April 6, 2005 order dismissing this case. A post-judgment motion
seeking substantive relief from a judgment must be made pursuant
to either Rule 59 or Rule 60(b) of the Federal Rules of Civil
Procedure. The plaintiff has failed to specify either rule, but appears to have filed this
document within the ten business days required for a Rule 59
A Rule 59(e) motion "may only be granted if there has been a
mistake of law or fact or new evidence has been discovered that
is material and could not have been discovered previously."
Figgie Int'l, Inc. v. Miller, 966 F.2d 1178, 1180 (7th cir.
1992). The plaintiff maintains that a mistake has been made in
The plaintiff says he did in fact follow the court's order and
mailed in an amended complaint. As proof of his claims, the
plaintiff has provided a copy of a "Request for Payment" form.
This is the form an inmate must use to request postage. The form
is dated March 15, 2005 and is signed by the plaintiff. It also
indicates that it is a request for legal mail and is marked
"Amended 1983." There is no signature from any prison official
indicating that the request was approved. However, there is a
section that appears to have been signed by someone indicating
that postage of $3.95 cents was designated.
The court will give the plaintiff the benefit of the doubt that
he did follow the court's instructions and provided a copy of his
amended complaint to prison officials within the necessary time
frame. The plaintiff has also provided another copy of this
amended complaint to the court. The motion for reconsideration is
IT IS THEREFORE ORDERED that:
1) The clerk of the court is directed to vacate the
court's September 14, 2005 text order and reinstated
the plaintiff's motion for reconsideration. [d/e 9]
2) The motion to reconsider is granted. [d/e 9]
3) The clerk of the court is directed to vacate the
court's April 6, 2005 order and the judgement
dismissing this case. The clerk is directed to reopen
this case. A merit review order will be entered.
4) The plaintiff's motion to proceed in forma
pauperis on appeal [d/e 12], motion for an order [d/e
19] and motion to expedite [d/e 20] are denied as
5) The clerk is directed to notify the Court of
Appeals of this ruling by the court.
© 1992-2006 VersusLaw Inc.