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Moorer-Bey v. Federal Bureau of Prisons

United States District Court, Seventh Circuit

September 23, 2013

STEPHAN MOORER-BEY, # XXXXX-XXX, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al., Defendants.

MEMORANDUM AND ORDER

G. PATRICK MURPHY, District Judge.

Plaintiff, Stephan Moorer-Bey, an inmate in the custody of the Federal Bureau of Prisons, filed this Bivens action in February 2012 for alleged deprivations of his constitutional rights by persons acting under color of federal law. Plaintiff's original complaint, which was "197 pages long and virtually unintelligible, " was dismissed without prejudice pursuant to Rule 8 of the Federal Rules of Civil Procedure (Doc. 6). Plaintiff then filed an amended complaint (Doc. 11). The amended complaint was screened pursuant to 28 U.S.C. ยง 1915A, and the case was dismissed as frivolous (Doc. 12). Judgment was entered accordingly (Doc. 13). Plaintiff appealed the dismissal of his case to the Seventh Circuit (Doc. 14). However, the Seventh Circuit dismissed Plaintiff's appeal for failure to pay the required appellate fee (Doc. 27).

This matter is currently before the Court on two motions for relief from judgment, which Plaintiff filed on December 17, 2012 (Doc. 28), and March 8, 2013 (Doc. 29). The motions are identical both in content and near incomprehensibility. They appear to request that the Court reconsider the order dismissing Plaintiff's original complaint (Doc. 6); the order granting Plaintiff's motion for leave to proceed in forma pauperis (Doc. 7); and the order dismissing this action as frivolous (Doc. 12). None of the Defendants filed a response to Plaintiff's motions, nor were they ordered to do so. For the reasons set forth below, Plaintiff's motions for relief from judgment are denied.

DISCUSSION

Plaintiff filed both pending motions (Docs. 28, 29) under Rule 60 of the Federal Rules of Civil Procedure ("Rule 60"). A motion filed under Rule 60(b)(1) must be filed within one year after entry of judgment. FED. R. CIV. P. 60(c)(1). Rule 60(b) permits a court to relieve a party from a final order or judgment based on such grounds as mistake, surprise, or excusable neglect; newly discovered evidence; fraud; or for any other reason that justifies relief. FED. R. CIV. P. 60(b); McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000). However, Rule 60 is not a substitute for an appeal: "The ground for setting aside a judgment under Rule 60(b) must be something that could not have been used to obtain a reversal by means of direct appeal." Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); accord Stoller v. Pure Fishing, Inc., 528 F.3d 478, 480 (7th Cir. 2008).

In this case, Plaintiff's motions were filed approximately eight and eleven months after entry of the judgment, and therefore are timely under Rule 60(b)(1). Plaintiff seeks relief from judgment based on five grounds, but as explained below, none warrant granting Plaintiff relief from judgment in this case.

A. "GROUND ONE"

Plaintiff first appears to argue that his original complaint was improperly dismissed ( See Docs. 28, 29). The Court dismissed the complaint, which was "197 pages long and virtually unintelligible, " under Rule 8 of the Federal Rules of Civil Procedure (Doc. 6). Dismissal was without prejudice and with leave to amend, and the order was not accompanied by a separate final judgment ( See Doc. 6). Therefore, the order of dismissal was nonfinal, Schering-Plough Healthcare Products, Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 506 (7th Cir. 2009), and Rule 60 is inapplicable. FED. R. CIV. P. 60(b) (permitting relief from "a final judgment, order, or proceeding").

B. "GROUND TWO"

So far as the Court can tell, Plaintiff is challenging the dismissal of his claim regarding his transfer to the Communications Management Unit ("CMU") at USP-Marion ( See Docs. 28, 29). In his amended complaint, it seems that Plaintiff attempted to allege a claim for retaliation and also a claim for violation of due process with respect to his transfer ( See Doc. 11, pp. 8, 10, 11). Plaintiff now re-alleges states that the transfer violated his due process rights because he was not afforded a hearing to contest the grounds for his transfer (Docs. 28, 29).

It appears that the Court overlooked Plaintiff's claims regarding his transfer when the amended complaint was screened ( See Doc. 12). In considering the claims now, the Court is convinced that had they not been initially overlooked, they would have been dismissed along with Plaintiff's other claims because Plaintiff failed to state any cognizable claim.

1. Plaintiff Failed To State A Claim For Retaliation

In his amended complaint, Plaintiff alleged that his transfer to the CMU was retaliatory. Specifically, Plaintiff claimed that he was transferred to the CMU in retaliation filing "financing statements" against two prison officials and submitting FOIA requests regarding five prison officials (Doc. 11, pp. 9, 11). Plaintiff named Lockett, Joyner, Cozza-Rhodes, English, and Shmalennesse as Defendants (Doc. 11, p. 3).[1]

To state a claim for retaliation in the prison context, the complaint must set forth the defendants' retaliatory conduct and the constitutionally protected activity that motivated the defendants. See, e.g., McElroy v. Lopac, 403 F.3d 855, 858 (7th Cir. 2005). It is not clear that filing financing statements and submitting FOIA requests is protected speech; however, the Court need not analyze this issue ...


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