The opinion of the court was delivered by: Herndon, Chief Judge
Now before the Court is Plaintiff's Motion for Extension of Time on Motions for Reconsideration and Objection to Summary Judgment (Doc. 102), as well as Plaintiff's Motion for Reconsideration (Doc. 103). As for Plaintiff's Response in Opposition (Doc. 104) to Defendant's Motion for Summary Judgment (Doc. 99), there is no need for an extension of time to file it, as its filing was timely (response was not due until 5/5/2008 and it was filed on 4/21/2008). Plaintiff's Motion for Reconsideration (Doc. 103) regarding the Court's March 31, 2008 Order (Doc. 98), was also not untimely filed. A Motion for Reconsideration, filed pursuant to FEDERAL
RULE OF CIVIL PROCEDURE 59, must be filed within 10 days after entry of the judgment. Counting ten days under FEDERAL RULE OF CIVIL PROCEDURE 6, plus three days' time for service, would put the filing due date on April 17, 2008. The Certificate of Service on Plaintiff's Motion for Reconsideration shows it was mailed on April 14, 2008 (see Doc. 104, p. 12).*fn1 Accordingly, the Court FINDS AS MOOT Plaintiff's Motion for Extension of Time (Doc. 102), as both his Motion for Reconsideration (Doc. 103) and his Response (Doc. 104) were timely filed, as is. Therefore, the Court will now address the merits of Plaintiff's Motion for Reconsideration (Doc. 103).
Plaintiff requests that the Court reconsider certain parts of its March 31, 2008 Order (Doc. 98), which adopted in part and vacated in part the Report and Recommendation regarding Defendants' Motion for Summary Judgment. In sum, the Court granted summary judgment in favor of Defendants regarding Count 3 of Plaintiff's § 1983 Complaint, based on his failure to exhaust his administrative remedies.*fn2 However, the Court denied summary judgment on Count 4, finding that a material question of fact remained of whether prison officials essentially made Plaintiff's administrative remedies "unavailable." Plaintiff only seeks reconsideration regarding the Court's ruling on Count 3 of his Complaint. Count 3 of Plaintiff's Complaint alleged that Defendants were deliberately indifferent to his serious medical needs by letting him go on two hunger strikes, totaling 49 days, without checking on his physical condition or administering proper medical care.
Plaintiff's Motion to Reconsider may be made pursuant to FEDERAL RULE OF CIVIL PROCEDURE 59(e).*fn3 See FED.R.CIV.P. 59(e) ("Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment"). A Rule 59(e)motion "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (citing FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)). To support a motion for reconsideration based on newly discovered evidence, the moving party must show it did not know and reasonably could not have discovered with reasonable diligence the evidence proffered in the motion for reconsideration until after judgment was rendered. Caisse Nationale de Credit v. CBI Industries, 90 F.3d 1264,1269 (7th Cir. 1996). Therefore, a motion made pursuant to Rule 59(e) cannot be used as "a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to judgment." Moro v. Shell Oil Co., 91 F.3d 872, 875 (7th Cir. 1996).
Determining whether to grant a Rule 59(e) motion is at a district court's discretion. See Pickett v. Prince, 207 F.3d 402, 407 (7th Cir. 2000) (stating "[A] motion to reconsider a ruling is constrained only by the doctrine of the law of the case. And that doctrine is highly flexible, especially when a judge is being asked to reconsider his own ruling.") (citations omitted). "The rule essentially enables a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings." Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995) (citation omitted). The function of a motion to reconsider a judgment is not to serve as a vehicle to re-litigate old matters or present the case under a new legal theory. Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000) (citing Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)). Moreover, the purpose of such a motion "is not to give the moving party another 'bite of the apple' by permitting the arguing of issues and procedures that could and should have been raised prior to judgment." Yorke v. Citibank, N.A. (In re BNT Terminals, Inc.), 125 B.R. 963, 977 (N.D. Ill.1990) (citing F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986) (other citations omitted)). As one court plainly put it: "A Rule 59(e) motion is not a procedural folly to be filed by a losing party who simply disagrees with the decision; otherwise, the Court would be inundated with motions from dissatisfied litigants." Id.
Essentially, "'Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional circumstances.'" Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005)(quoting Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 628 (7th Cir. 1997)). "A Rule 60(b) motion permits relief from judgment when it is based on one of six specific grounds listed in the rule." Talano v. Northwestern Medical Faculty Foundation, Inc., 273 F.3d 757, 762 (7th Cir. 2001).
Rule 60(b) provides, in pertinent part:
The Court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1)mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
"[T]he determination of what amounts to 'excusable neglect' under Rule 60(b) is 'at bottom an equitable one, taking account of all the relevant circumstances surrounding the party's omission.'" Robb v. Norfolk & Western Ry. Co., 122 F.3d 354, 359 (7th Cir.1997) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)) (emphasis in original). The relevant circumstances for courts to consider regarding excusable neglect include: (1) the reasons for the delay, including whether it was within the reasonable control of the movant; (2) the danger of prejudice to the defendant; (3) the length of the delay and its potential impact on judicial proceedings; and (4) whether the movant acted in good faith. Id.
In this case, the Court granted summary judgment as to Count 3 of Plaintiff's Complaint because none of the grievances filed by Plaintiff during the time period in question complained of deliberate indifference of lack of medical care regarding Plaintiff's hunger strikes (the first was April - May 2004; the second was June - July 2004). The Court found that one grievance, initially dated August 8, 2004,*fn4 actually did make reference to Defendants' alleged wrongful behavior, but this grievance was never attached with the others to Plaintiff's Complaint. It was only attached as an exhibit to his Response in Opposition (Doc. 97) to Defendant's Motion for Summary Judgment. Moreover, Defendants stated they did not have record of this ...