United States District Court, S.D. Illinois
SHANE A. KITTERMAN, # B80577, Plaintiff,
DIRECTOR, et al., Defendants.
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
before the Court is a Motion to Reconsider Judgment
Dismissing Civil Action (Doc. 32) filed by Plaintiff Shane
Kitterman on November 18, 2016. For the reasons set forth
herein, the Motion is DENIED.
filed this civil rights action pursuant to 42 U.S.C. §
1983 on January 6, 2016. The Complaint was organized into 11
separate counts against 3 defendants. (Doc. 1). Plaintiff
offered few factual allegations in support of his claims in
the original Complaint. Id. Instead, he filed a
steady stream of proposed amendments to the Complaint during
the next six weeks. (Docs. 1-1, 7, 10, 10-1, 11, 12, and 14).
In each, he set forth new factual allegations and alternative
theories of liability against the defendants. Id.
March 4, 2016, the Court dismissed the Complaint for
violating Rule 8 of the Federal Rules of Civil Procedure.
(Doc. 17). In the Order Dismissing Complaint, the Court
explained that Rule 8 requires a Complaint to set forth
“a short and plain statement of the claim showing that
the pleader is entitled to relief” and “a demand
for the relief sought.” Fed.R.Civ.P. 8(a). Each
allegation must be “simple, concise, and direct.”
Fed.R.Civ.P. 8(d)(1). The Complaint must “actually
suggest that the plaintiff has a right to relief, by
providing allegations that raise a right to relief above a
speculative level.” Tamayo v. Blagojevich, 526
F.3d 1074, 1084 (7th Cir. 2008). The Court found that
Plaintiff's Complaint violated these requirements because
it consisted of little more than a list of legal claims and
defendants, without basic factual allegations describing the
conduct of each defendant that resulted in the violation of
Plaintiff's constitutional rights. (Doc. 17, p. 2). The
Court did not accept Plaintiff's piecemeal amendments to
the Complaint (Docs. 1-1, 7, 10, 10-1, 11, 12, and 14) or
construe them together as a unified Complaint. (Doc. 17, pp.
was granted leave to file an amended complaint on or before
April 8, 2016. (Doc. 17, p. 6). He was instructed to
“set forth all of [his] claims against the defendants
in a single pleading” and “present each
claim in a separate count . . . and specify, by
name, each defendant alleged to be liable under the
count, as well as the actions that each defendant took in
violation of Plaintiff's rights.” Id.
Plaintiff was warned that the Court would not accept
piecemeal amendments. Id. In addition, the Court
specifically advised Plaintiff: “Should Plaintiff fail
to file his first amended complaint within the allotted time
or consistent with the instructions set forth in this Order,
the entire case shall be dismissed with prejudice.”
(Doc. 17, p. 6) (emphasis added) (citing Fed.R.Civ.P. 41(b);
Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997);
Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28
U.S.C. § 1915A)).
responded by filing 4 amended complaints totaling 324 pages.
(Doc. 29, pp. 4-5). Because each new amendment supersedes and
replaces all prior amendments, the Court accepted the last
version submitted by Plaintiff as the operative pleading.
(Doc. 29, p. 5). The 55-page Third Amended Complaint included
39 pages of exhibits. (Doc. 28). Instead of 3 defendants as
named in the original Complaint, Plaintiff named 70
defendants in the Third Amended Complaint. Instead of 11
counts as in the original Complaint, he set forth at least 46
counts in the Third Amended Complaint. In addition, Counts 45
and 46 incorporated Plaintiff's entire 30-page Second
Amended Complaint by reference and the Second Amended
Complaint was submitted as an exhibit to the Third Amended
Complaint. Between the two, the statement of claim consisted
of 84 pages and encompassed well over 46
claims. Virtually all of Plaintiff's claims
arose under state law.
reviewing the Third Amended Complaint, the Court concluded
that it represented an egregious violation of the Court's
Order Dismissing Complaint (Doc. 17) and warranted dismissal
of the Third Amended Complaint and the action. (Doc. 29, p.
9). The Court noted that “Plaintiff followed virtually
none of the Court's orders for properly amending his
pleading. He disregarded the instructions and warnings set
forth in the Order Dismissing Complaint”. Id.
Dismissal of the Complaint was warranted based on his
continued violation of Rule 8. Further, dismissal of the
action was warranted because of Plaintiff's failure to
comply with the Order Dismissing Complaint. Id.
Rather than dismissing the action with prejudice, however,
the Court entered an Order Dismissing Case without prejudice
on November 7, 2016. (Doc. 29). No “strike” was
assessed against Plaintiff under 28 U.S.C. § 1915(g).
filed a Motion to Reconsider Judgment Dismissing Civil Action
(Doc. 32) on November 18, 2016. In it, Plaintiff asks the
Court to excuse him from the requirements for amending his
Complaint that were set forth in the Order Dismissing Case
(Doc. 29). Plaintiff insists that he “had no idea that
the Court's order was mandatory and that by not using a
predetermined form that prevented the Plaintiff from fully
describing the events that caused his injury would subject
him to the dismissal of his civil action in its
entirety.” (Doc. 32, p. 3). He also challenges the
Court's conclusion that the Third Amended Complaint
violates Rule 8, stating, “This finding . . . could not
be further from the truth. . . . The complaint describes
actions of more than 70 people over 20 plus years. How much
more short and plain can the Plaintiff make his
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). Different time-tables and standards
govern these motions.
59(e) authorizes relief only in “exceptional
cases” and permits a court to amend a judgment only if
the movant demonstrates a manifest error of law or fact or
presents newly discovered evidence that was not previously
available. Willis v. Dart, 671 Fed. App'x 376,
377 (7th Cir. 2016) (quoting Gonzalez-Koeneke v. W.,
791 F.3d 801, 807 (7th Cir. 2015); Heyde v.
Pittenger, 633 F.3d 512, 521 (7th Cir. 2011)). See
also Sigsworth v. City of Aurora, 487 F.3d 506, 511-12
(7th Cir. 2007)). A Rule 59(e) motion must be filed within 28
days of the order being challenged.
relief under Rule 60(b) is “an extraordinary remedy
that is to be granted only in exceptional
circumstances.” Willis, 671 Fed. App'x at
377 (quoting Provident Sav. Bank v. Popovich, 71
F.3d 696, 698 (7th Cir. 1995); see also N. Cent. Ill.
Laborers' Dist. Council v. S.J. Groves & Sons
Co., 842 F.2d 164, 168 (7th Cir. 1988) (internal marks
omitted) (describing a Rule 60(b) ruling as “discretion
piled upon discretion”)). 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; ...