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David Gevas v. Terrence Cox and Lisa Walters

February 16, 2012

DAVID GEVAS, PLAINTIFF,
v.
TERRENCE COX AND LISA WALTERS, DEFENDANTS.



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

MEMORANDUM AND ORDER

In July 2010, David Gevas filed a pro se complaint in this United States District Court, pursuant to 42 U.S.C. § 1983, for deprivations of his constitutional rights arising out of several incidents that occurred while Gevas was housed in Lawrence Correctional Center. See Gevas v. Ryker, Case No. 10-cv-0493-MJR (S.D.Ill.). Upon review of the complaint, the Court determined that the claims against Defendants Walters and Cox in Count 2 and the claim against Defendant Hoskinson in Count 4, were not sufficiently related to the claims against the other Defendants so as to allow them to proceed together in one lawsuit. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (separate, unrelated claims belong in different suits). The Court concluded that Counts 2 and 4 should be severed into two new cases with additional filing fees assessed for each. The Court advised Gevas that he could, within 45 days, move to voluntarily dismiss Counts 2 and 4 without prejudice in order to avoid paying these additional fees. Gevas requested that Count 4 be dismissed; however, he did not request dismissal of Count 2. Consequently, on April 22, 2011, the Court opened the instant action against Walters and Cox.

Walters moved for summary judgment, and, on November 29, 2011, United States Magistrate Judge Stephen C. Williams filed a Report and Recommendations recommending that the motion be granted (Doc. 39). Gevas filed a timely objection, and the Court undertook de novo review.

In a detailed Order entered December 22, 2011, the Court concluded that Gevas had failed to exhaust his administrative remedies as to his claims against Walters. As a result, the Court granted Walters' summary judgment motion and dismissed her as a Defendant in this action. Dismissal was without prejudice.

By motion filed January 11, 2011, Gevas seeks reconsideration of the dismissal Order. Gevas's motion seeks relief "pursuant to 59(e) and/or Rule 60(b)" of the Federal Rules of Civil Procedure.

Federal Rule of Civil Procedure 59(e), as amended in December 2009, authorizes the filing of a motion to alter or amend judgment "no later than 28 days after the entry of the judgment." The Court granted summary judgment as to Walters on December 22, 2011, and Gevas's motion was filed January 11, 2012, so it fits within the Rule 59(e) timetable. But Gevas has demonstrated no basis warranting Rule 59(e) relief.

Although Rule 59(e) itself does not list the grounds for altering or amending a judgment, caselaw has supplied them. The United States Court of Appeals for the Seventh Circuit has recognized only three valid grounds supporting grant of a Rule 59(e) motion: (1) newly-discovered evidence, (2) an intervening change in the law, and (3) a manifest error of law or fact. See, e.g., Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir.), cert. denied, 129 S. Ct. 417 (2008); Sigsworth v. City of Aurora, Illinois, 487 F.3d 506, 511-12 (7th Cir. 2007); Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998).

A motion to alter or amend judgment should be used "to draw the district court's attention to a manifest error or law or fact or to newly discovered evidence." United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010). In Resnick, the Court emphasized that Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce ... evidence or arguments that could and should have been presented to the district court prior to the judgment." Id., quoting Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 529 (7th Cir. 2000).

In County of McHenry v. Insurance Co. of the West, 438 F.3d 813, 819 (7th Cir. 2006), Judge Flaum similarly explained:

"A court may grant a Rule 59(e) motion to alter or amend the judgment if the movant presents newly discovered evidence that was not available [prior to judgment] or if the movant points to evidence in the record that clearly establishes a manifest error or law or fact".... But a Rule 59(e) motion "is not appropriately used to advance arguments or theories that could ... have been made before the district court rendered a judgment."

Id., quoting Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996), and LB Credit Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995).

Manifest error has been defined as "wholesale disregard, misapplication, or failure to recognize controlling precedent" on the part of the court. Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). So, for example, Rule 59(e) relief is appropriate where the court seriously misunderstood the facts or simply refused to apply controlling law. See FEDERAL CIVIL RULES HANDBOOK, BAICKER-MCKEE,JANSSEN AND CORR (2010), pp. 1133. Clearly, though, the disappointment or surprise of the losing party does not constitute manifest error. Oto, 224 F.3d at 606.

In the case sub judice, Gevas falls far short of satisfying the standard for Rule 59(e) relief. He has identified no controlling precedent which this Court ignored, overlooked or failed to follow. He has neither identified any manifest error of fact by the undersigned Judge, nor identified newly discovered evidence that was unavailable prior to the Court's granting summary judgment in favor of Walters.

Gevas's argument that the undersigned Judge found that he had exhausted his administrative remedies in his preliminary review order fails because the paragraphs to which Gevas cites refer to his own ...


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