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Moss v. Westerman

March 12, 2008

CARL MOSS, A/K/A MOSETICK, PLAINTIFF,
v.
DARRELL N. WESTERMAN, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

I. Factual and Procedural Background

In August, 2004, Carl Moss, an inmate currently confined at the Danville Correctional Center in Danville, Illinois, and at all times relevant to the instant action confined at Menard Correctional Center in Menard, Illinois, filed a 42 U.S.C. § 1983 civil rights complaint.

In Moss's amended complaint, filed June 1, 2005, he alleges that Warden McAdory established a policy regarding the procedure for carrying paperwork to the library. Moss was carrying his paperwork to the library in a plain white envelope when Westerman took it from him and emptied the contents. A copy of the warden's policy was one of the items in the envelope. Moss attempted to show it to Westerman and gain clarification of the policy. Westerman responded, "I run this, if you don't like it, write a grievance." Moss replied, "As you wish, sir." Taking note of the officer's name tag for the grievance, Moss added, "Lieutenant Westerman."

Westerman then ordered Moss to cuff-up and directed another correctional officer to escort him back to his cell. A few minutes later, Westerman came to Moss's cell, again ordered him to cuff-up and escorted him to the prison's segregation unit. In the segregation unit, Westerman remarked, "This will teach him to write a grievance about me." Moss violated no prison rules, but Westerman filed false charges, accusing him of insolence and violation of rules.*fn1 As a result of the false charges, Moss was segregated from other inmates for one month, demoted to "C" grade for one month and lost commissary privileges for one month. Doc. 13, Exhibit G.

Moss moves the Court to reconsider its June 20, 2006 Order dismissing his procedural due process claims (Doc. 62). However, the June 20th Order was previously vacated on reconsideration (Doc. 20) by the Court's July 24, 2006 Order (Doc. 21). The Court will construe Moss's motion as seeking reconsideration of its July 24th Order.

II. Applicable Legal Standard

The Federal Rules of Civil Procedure do not specifically authorize the filing of motions to reconsider. Such motions are filed routinely, however, and they are construed either as Rule 59(e) motions to alter/amend or Rule 60(b) motions for relief from judgment/order.

The Seventh Circuit has delineated a bright-line test to determine which Rule governs. If the motion to reconsider was filed within ten days of entry of the challenged judgment or order, then Rule 59(e) applies. On the other hand, if the motion to reconsider was filed more than ten days after entry of the challenged judgment or order, Rule 60(b) applies. See Britton v. Swift Transp. Co., Inc., 127 F.3d 616, 618 (7th Cir. 1997); Russell v. Delco Remy Division of General Motors Corp., 51 F.3d 746, 750 (7th Cir. 1995); United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992). This Court follows FEDERAL RULE OF CIVIL PROCEDURE 6(a) in calculating the ten- day period (i.e., counting the ten days to exclude weekends and holidays).

Here, Moss's motion seeking reconsideration was filed more than ten days after the Court's July 24th Order, so Rule 60(b) governs. Rule 60(b) permits a district court to relieve a party from an order or judgment on the following narrow grounds: mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or "any other reason justifying relief" from operation of the judgment or order.

A Rule 60(b) motion cannot be used to correct simple legal errors. "Rather, it exists to allow courts to overturn decisions where 'special circumstances' justify an 'extraordinary remedy.'" Cash v. Illinois Div. of Mental Health, 209 F.3d 695, 698 (7th Cir. 2000).The Seventh Circuit has emphasized that Rule 60(b) imposes an "exacting standard" under which the movant must demonstrate exceptional circumstances to prevail. See Romo v. Gulf Stream Coach, 250 F.3d 1119, 1121 n.3 (7th Cir. 2001).

III. Analysis

Moss's motion reveals no mistake, inadvertence, surprise, excusable negect, newly discovered evidence or fraud and, thus, can only fall under the catch-all phrase of "any other reason justifying relief." Upon review of the records and the parties' submissions on the instant matter, the Court finds no "special circumstances" that would justify an "extraordinary remedy."

In its June 20th Order, upon threshold review, the Court dismissed Moss's case, finding that Moss could not state a due process claim because his transfer to segregation did not deprive him of a liberty interest protected by the Constitution. Moss filed a motion for reconsideration, which the Court granted on July 24, 2006 (Doc. 21). The Court construed Moss's amended complaint as stating three claims for relief: 1) a procedural due process claim attacking his disciplinary hearing; 2) a procedural due process claim regarding the ineffective grievance ...


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