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Smith v. Walker

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


July 9, 2010

MILTON SMITH, PLAINTIFF,
v.
ROGER E. WALKER, JR., ET AL., DEFENDANTS.

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

MEMORANDUM AND ORDER

Plaintiff, an inmate at the Tamms Correctional Center, brought this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 and sought leave to proceed in forma pauperis..

On May 14, 2007, this Court denied Plaintiff's motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). The Court found that Plaintiff was not under "imminent danger of serious physical injury," 28 U.S.C. § 1915(g), and directed Plaintiff to pay the full filing fee. On August 15, 2007, after Plaintiff failed to pay the filing fee, this case was dismissed with prejudice (Docs. 8 and 9). Plaintiff attempted to appeal this Court's decision, but the appeal was dismissed. See (Doc. 17).

DISCUSSION

Technically, a "Motion to Reconsider" does not exist under the Federal Rules of Civil Procedure. Usually, such motions are treated 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).

A motion under Rule 59(e), however, must be filed within 28 days of the date judgment is entered. Fed. R. Civ. P. 59(e). A motion filed under Rule 60(b) must be filed "within a reasonable time - and for reasons (1), (2), and (3) no more than a year after the entry of the judgment." Fed. R. Civ. P. 60(c)(1). In the instant case, Plaintiff's motion to reconsider was filed more than 2 years after the judgment dismissing his case was entered. This is not a "reasonable time" even under Rule 60(c)(1). Therefore, the instant motion to reconsider is DENIED

IT IS SO ORDERED.

MICHAEL J. REAGAN United States District Judge

20100709

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