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Wallace v. Powers

January 20, 2010

MAURICE WALLACE, PLAINTIFF,
v.
MARVIN POWERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's motion to alter judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure or, alternatively, to issue a certificate of appealability (Doc. 21); his motion for relief from judgment pursuant to Rule 60(b) (Doc. 22); and his motion for an extension of time to file a notice of appeal (Doc. 23).

On November 19, 2009, the Court issued its Memorandum and Order dismissing Plaintiff's pro se civil complaint seeking relief under 42 U.S.C. § 1983. As Plaintiff was a prisoner seeking relief against government officials, the dismissal was made pursuant to 28 U.S.C. § 1915A. Plaintiff certifies that he placed his motion to alter judgment or, alternatively, to issue a certificate of appealability (Doc. 21) into the mail at Tamms Correctional Center (Tamms) on December 1, 2009. The motion was received by this Court on December 3, 2009. Thus, Plaintiff's motion to alter judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure was timely filed.*fn1

Plaintiff further certifies that he placed his motions for relief from judgment (Doc. 22) and his motion for an extension of time to file a notice of appeal (Doc.23) in the mail at Tamms on December 14, 2009. Curiously, both of these motions were received by the Clerk of Court on December 14, 2009. In any event, both motions were timely filed.

MOTION TO ALTER JUDGMENT PURSUANT TO RULE 59

A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be granted if a movant shows there was mistake of law or fact or presents newly discovered evidence that could not have been discovered previously. Matter of Prince, 85 F.3d 314 (7th Cir. 1996), reh'g and suggestion for reh'g en banc denied, cert. denied 117 S.Ct. 608; Deutsch v. Burlington Northern R. Co., 983 F.2d 741 (7th Cir. 1993). Upon review of the record, the Court remains persuaded that its ruling dismissing the case pursuant to 28 U.S.C. § 1915 was correct. Therefore, the instant motion to alter judgment pursuant to Rule 59 (Doc. 21) is DENIED.

MOTION FOR A CERTIFICATE OF APPEALABILITY

As an alternative to altering the judgment pursuant to Rule 59(e), Plaintiff requests that this Court issue him a "certificate of appealability." Title 28 U.S.C. § 2253(c) provides in pertinent part:

Unless a circuit justice of judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ---

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

28 U.S.C. § 2253(c)(1).

Plaintiff's civil rights action is neither a proceeding under 28 U.S.C. § 2255, nor is it a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court. Consequently, no certificate of appealability is necessary for Plaintiff to perfect his appeal. Fed.R.App.P. 22(b); 28 U.S.C. § 2253(c). ...


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