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Parker v. Walker

October 21, 2009

LEE HOLDEN PARKER, PLAINTIFF,
v.
ROGER E. WALKER, JR., ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's motion to "proceed incognito John Doe" (Doc. 25) and his motion to vacate judgment pursuant to Rule 59 or, alternatively Rule 60 (Doc. 26).

BACKGROUND

Plaintiff, a wheelchair bound inmate, commenced this action alleging deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, § 1985(3), and § 1986; for violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; and for violations of various state laws. At the heart of each of his claims was Plaintiff's assertion that he is being denied placement in a protective custody unit in violation of the Eighth Amendment. Specifically, Plaintiff charged that the lack of a protective custody unit at Pinckneyville Correctional Center (PCC) is per se deliberate indifference to Plaintiff's risk of being attacked by other inmates at PCC whom he believes pose a threat to his safety. To ensure his own safety, Plaintiff chose to refuse orders to move to general population and, therefore, Plaintiff was placed on administrative/disciplinary segregation.

After conducting a thorough analysis and discussion of Plaintiff's claims, this Court found that the complaint did not survive review under 28 U.S.C. § 1915A. See (Doc. 8). Judgment was entered in favor of Defendants and against Plaintiff (Doc. 9). Counts 5 and 7 of the complaint, in which Plaintiff sought restoration of good time credits, were dismissed without prejudice because Plaintiff's only federal remedy was a writ of habeas corpus, not a § 1983 action.*fn1 Id.

After judgment was entered, Plaintiff filed a motion for extension of time to file a "motion for reconsideration" (Doc. 10). Plaintiff also filed an amended complaint (Doc. 11) which, because judgment had already been entered against Plaintiff, this Court construed as a motion to file an amended complaint.

On December 10, 2008, the Court denied Plaintiff's motion for an extension of time to file his motion for reconsideration noting that it did not have the authority to extend the time limits for filing a motion pursuant to Rule 59(e) or Rule 60(b). See (Doc. 12). The Court denied Plaintiff's motion to file an amended complaint because Plaintiff had not even moved to vacate the judgment dismissing this action. Id.

On December 17, 2009, Plaintiff filed a motion for reconsideration. See (Doc. 13). On February 5, 2009, this Court denied Plaintiff's motion for reconsideration. See (Doc. 14).

Plaintiff filed a notice of appeal (Doc. 15) and a motion to proceed in forma pauperis on appeal (Doc. 18). This Court denied Plaintiff's motion to proceed in forma pauperis on appeal. See (Doc. 22). Accordingly, Plaintiff was directed to tender the appellate filing fees or to reapply for in forma pauperis status with the Seventh Circuit Court of Appeals. Id.

While Plaintiff's appeal was pending in the Seventh Circuit Court of Appeals, he filed the instant motions.

The Seventh Circuit Court of Appeals dismissed Plaintiff's appeal because he failed to pay the appellate filing fees.

DISCUSSION

As noted above, Plaintiff previously moved to vacate this Court's Judgment dismissing his complaint pursuant to 28 U.S.C. § 1915A. See (Doc. 13). The Court denied that motion and the instant motion fares no better than its predecessor.

A "motion to reconsider" challenging the merits of a district court order will automatically be considered as having been filed pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). If a motion challenging a judgment on the merits is served after ...


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