The opinion of the court was delivered by: Herndon, Chief Judge
This matter is before the Court on Plaintiff's motion for reconsideration (Doc. 17) which seeks to vacate this Court's Order and Judgment dismissing this case for failing to comply with the Court's prior Order. See (Docs. 14 and 15).
At the time he filed his pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and his motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Doc. 2), Plaintiff was confined at the Lawrence Correctional Center. After filing the complaint and the instant motion to proceed in forma pauperis, Plaintiff was released from confinement. Because he was detained at the time he filed these pleadings, this Court held that that the prisoner provisions of 28 U.S.C. § 1915 still apply. See Robbins v. Switzer, 104 F.3d 895, 897-98 (7th Cir. 1997). Following the procedure detailed by the Seventh Circuit in Robbins, this Court calculated and assessed an initial partial filing fee of $12.07 based on Plaintiff's prisoner account information. See (Doc. 6). Plaintiff was ordered to pay the initial partial filing fee within 15 days. Id. Plaintiff was further ordered to pay the balance of the filing fee or to file a motion to proceed in forma pauperis with respect to it within 15 days. Id. Plaintiff was warned that the failure to comply with the Court's Order could result in the dismissal of his case. Id. When Plaintiff failed to pay the initial partial filing fee and failed to pay the balance of the filing fee (or apply for in forma pauperis status with respect to it), the Court dismissed Plaintiff's complaint with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failing to comply with the Court's Order.
In the instant motion, Plaintiff contends that he did not comply with the Court's Order (Doc. 6) because he did not receive it. Although it is not relevant to the Court's decision, the Court notes that Plaintiff states that on April 9, 2010, he became re-incarcerated and is currently confined at the Vandalia Correctional Center.
Technically, a "Motion to Reconsider" does not exist under the Federal Rules of Civil Procedure. The Seventh Circuit has held, however, that a motion 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 28 days of the rendition of judgment, the motion falls under Rule 60(b). Id. (citations omitted).
Judgment was entered in this action on April 19, 2010, but the instant motion was not filed until June 1, 2010, well after the 28-day period expired. See FED.R.CIV.P. 59(e). Therefore, as a Rule 59(e) motion, the motion is time-barred.
Under Deutsch, the Court will thus construe the motion as filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b)(1) provides for relief from judgment for "mistake, inadvertence, surprise, or excusable neglect." FED.R.CIV.P. 60(b)(1). Rule 60(b)(6) provides for relief from judgment for "any other reason that justifies relief." However, the reasons offered by a movant for setting aside a judgment under Rule 60(b) must be something that could not have been employed to obtain a reversal by direct appeal. See, e.g., Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989) ("an appeal or motion for new trial, rather than a FRCP 60(b) motion, is the proper avenue to redress mistakes of law committed by the trial judge, as distinguished from clerical mistakes caused by inadvertence"); Swam v. United States, 327 F.2d 431, 433 (7th Cir.), cert. denied, 379 U.S. 852 (1964) (a belief that the Court was mistaken as a matter of law in dismissing the original petition does "not constitute the kind of mistake or inadvertence that comes within the ambit of rule 60(b).").
In this case, Plaintiff contends that he suffered an involuntary dismissal of his action through no fault of his own because he did not receive the Court's prior order. Although skeptical of this claim, Due Process dictates that Plaintiff have received actual notice of the Court's prior Order and the requirements imposed by it before the Court dismissed Plaintiff's complaint. Accordingly, Plaintiff's motion to reconsider (Doc. 17), which the Court construes as a motion pursuant to Rules 60(b)(1) and (b)(6), is GRANTED.
The Court's Memorandum and Order (Doc. 14) and Judgment (Doc. 15) are VACATED and Plaintiff's action is REOPENED and REINSTATED.
This matter is again referred to United States Magistrate Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to a United States Magistrate Judge Donald G. Wilkerson for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
The Court notes that all three Defendants have executed waivers of service of process. Accordingly, Defendants are ORDERED to timely file an appropriate responsive pleading to the complaint, and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Because Plaintiff has become re-incarcerated, IT IS HEREBY ORDERED that Plaintiff shall pay the $350.00 filing fee applicable to this civil action as follows:
1. Plaintiff shall pay an initial partial filing fee of $12.07 . See 28 U.S.C. § 1915(b)(1). The agency having custody of Plaintiff is DIRECTED to transmit this amount from Plaintiff's prison trust fund account to the ...