United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.
matter is before the Court on Barnes's motion for
reconsideration. (Doc. 8). Barnes, an inmate of the Illinois
Department of Corrections incarcerated at Menard Correctional
Center, filed this action with a document captioned
“Declaratory Judgment ~ [ ] Injunctive Relief Action
Incident to Diamond Barnes.” Barnes asked the Court to
compel another district court judge and/or the Seventh
Circuit Court of Appeals to find that his previously
dismissed habeas petition is timely and/or to enjoin the same
from dismissing his habeas petition. The pleading was
construed as a Petition for Writ of Mandamus. The Court
determined it had no authority to grant the relief requested
and dismissed the Petition for lack of subject matter
Federal Rules of Civil Procedure do not explicitly
contemplate motions to reconsider. But such motions are
routinely filed, and they generally are treated as motions to
alter or amend an order or judgment under Rule 59(e) or
motions for relief from judgment/order under Rule 60(b).
Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994);
United States v. Deutsch, 981 F.2d 299, 300 (7th
Cir. 1992). Different standards and timetables govern Rule
59(e) and Rule 60(b) motions. Rule 59(e) allows a court to
alter or amend a judgment in order to correct manifest errors
of law or fact or to address newly discovered evidence.
Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir.
2008). “A ‘manifest error' is not
demonstrated by the disappointment of the losing party. It is
the wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (internal citations omitted).
60(b) permits relief 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). The reason 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. United
States, 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
timely Rule 59(e) motion suspends the deadline for filing an
appeal until the Rule 59(e) motion is ruled upon.
See Fed. R. App. P. 4(a)(4)(A)(iv). Any Rule 60(b)
motion must be filed within a reasonable time and, if seeking
relief under Rule 60(b)(1), (2), or (3), must be filed no
more than one year after entry of the judgment or order.
See Fed. R. Civ. P. 60(c)(1). A Rule 60(b) motion
suspends the deadline for filing an appeal until the Rule
60(b) motion is ruled upon only if the motion is filed within
28 days of the entry of judgment. See Fed. R. App.
concedes that the Court does not have subject matter
jurisdiction for his request for injunctive relief but argues
that the Court mistakenly dismissed the declaratory judgment
aspect of his Petition. (Doc. 8, p. 2). He contends the Court
has jurisdiction to determine and declare “when is a
judgment entered of record” under Illinois Supreme
Court Rule 272 and Federal Rule of Appellate Procedure 36.
This does not present a basis for a declaratory judgment.
Separating this question from the injunctive relief sought
renders it nothing more than an abstract question.
stated in the Order dismissing the Petition, it is not within
the power of this Court to review final orders of another
district court judge or an appellate court. This Court does
not have the authority to grant the requested relief, and the
Petition was properly dismissed for lack of subject matter
jurisdiction. The motion for reconsideration does not reveal
any error of law or fact in this Court's dismissal. Thus,
Barnes fails to set forth any grounds under Rule 59(e) to
vacate the judgment. Further, he has not stated any grounds
for relief within the scope of Rule 60(b). The motion for
reconsideration will, therefore, be denied.
alternative, Barnes asks the Court for leave to amend and/or
transfer of the case to the Seventh Circuit Court of Appeals.
(Id.). Under the circumstances, leave to amend would
be futile; that request will be denied. The request to
transfer the case to the Seventh Circuit Court of Appeals
will also be denied.
review of the record, the Court determines that its ruling
dismissing the Petition was correct. The motion for
reconsideration (Doc. 8) is, therefore,
DENIED. Further, the requests for leave to
amend and/or transfer to the Seventh Circuit Court of Appeals
Barnes wishes to appeal this dismissal, he may file a notice
of appeal with the Court within thirty (30) days of the entry
of judgment. Fed. R. App. P. 4(a)(1)(B). A motion for leave
to appeal in forma pauperis should set forth the
issues Barnes plans to present on appeal. See Fed.
R. App. P. 24(a)(1)(C). If Barnes does choose to appeal and
is allowed to proceed IFP, he will be liable for a portion of
the $505.00 appellate filing fee in order to pursue his
appeal (the amount to be determined based on his prison trust
fund account records for the past six months) irrespective of
the outcome of the appeal. See Fed. R. App. P. 3(e);
28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger,
547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v.
Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien
v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Moreover, if the appeal is found to be nonmeritorious, Barnes
may incur a “strike” under 28 U.S.C. §