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William J. Buck, #R-21689 v. C/O Hartman

August 14, 2012

WILLIAM J. BUCK, #R-21689, PLAINTIFF,
v.
C/O HARTMAN, LT. LASHBROOK, AND LT. MIFFLIN, DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff's Motion for Reconsideration (Doc. 10), filed with this Court on July 20, 2012, and for case management. Previously, Plaintiff was notified on June 18, 2012, in Doc. 9 that if he failed to move to voluntarily dismiss his claim in Count 3 for retaliation against Defendants Mifflin, and Lashbrook, that claim would be severed into a new action and a new filing fee would be assessed. Plaintiff was given 45 days, until August 2, 2012, to file a motion for voluntary dismissal, so as to avoid the imposition of an additional filing fee. Plaintiff has not requested voluntary dismissal of Count 3, but instead asks the Court to reinstate the dismissed claims in Counts 2 and 4 as well as the dismissed Defendants, so that all his claims may go forward in a single action.

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 either 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). "[W]hether a motion filed within [28] days of the entry of judgment should be analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on the timing or label affixed to it." Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (emphasis in original) (citing Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006) (clarifying that "the former approach-that, no matter what their substance, all post-judgment motions filed within [28] days of judgment would be construed as Rule 59(e) motions- no longer applies")). Nevertheless, a motion to reconsider filed more than 28 days after entry of the challenged order, "automatically becomes a Rule 60(b) motion." Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994) (citing United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992)); see also Talano v. N.W. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001).

A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be granted if a movant shows there was a 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 519 U.S. 1040; Deutsch v. Burlington N. R.R. Co., 983 F.2d 741 (7th Cir. 1993).

Rule 60(b) permits a court to relieve a party from an order or judgment based on such grounds as mistake, surprise or excusable neglect by the movant; fraud or misconduct by the opposing party; a judgment that is void or has been discharged; or newly discovered evidence that could not have been discovered within the 28-day deadline for filing a Rule 59(b) motion. FED. R. CIV. P. 60(b)(1). 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. U.S., 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).").

Plaintiff's motion was filed within 28 days of the order he challenges, therefore, either Rule 59(e) or Rule 60(b) may be applied. Plaintiff essentially argues that the Court made a mistake of law in dismissing his claims in Count 2 and 4. Accordingly, the Court construes the motion as having been brought pursuant to Rule 59(e). In Count 2, Plaintiff alleged that his due process rights were violated when he was subjected to one year in disciplinary segregation after he was found guilty on two disciplinary tickets. In Count 4, Plaintiff alleged that his unsanitary and poorly ventilated cell, and the inadequate prison diet, constituted cruel and unusual punishment. Both counts were dismissed for failure to state a claim upon which relief could be granted.

Plaintiff has not shown any mistake of law or fact, or presented any newly discovered evidence, that would entitle him to an altered or amended judgment under Rule 59(e). Nor has he stated any grounds for relief within the scope of Rule 60(b). Instead, he argues at length that the more onerous conditions in Pontiac (chiefly greater restrictions on privileges such as visitation, telephone calls, property, commissary, and library access), where he was transferred after the incidents that gave rise to his suit, are sufficient to support his due process claim in Count 2. He also reiterates his complaints regarding the cell conditions and diet.

Upon review of the record, the Court remains persuaded that its ruling dismissing Counts 2 and 4 pursuant to 28 U.S.C. § 1915A was correct. Therefore, the Motion for Reconsideration (Doc. 10) is DENIED.

Further, because Plaintiff has indicated no desire to voluntarily dismiss the retaliation claim in Count 3, the Court will proceed to sever that claim into a new action.

SEVERANCE OF CLAIMS

IT IS HEREBY ORDERED that Plaintiff's retaliation claim, which is unrelated to the deliberate indifference claim in Count 1 is SEVERED into a new case. That new case shall be: Claims against DEFENDANTS MIFFLIN and LASHBROOK for retaliation.

The new case SHALL BE ASSIGNED to the undersigned District Judge for further proceedings. In the new case, the Clerk is DIRECTED to file the following documents:

(1) This Memorandum and Order;

(2) The Original Complaint (Doc. 1) and ...


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