Stoces v. Blankinship et al

Filing 18

ORDER denying 17 Motion to Vacate. Signed by Judge Michael J. Reagan on 6/4/09. (eed)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS ROBERT C. STOCES, Plaintiff, vs. ROBERT BLANKINSHIP, et al., Defendants. ) ) ) ) ) ) ) ) )

CIVIL NO. 08-cv-717-MJR

MEMORANDUM AND ORDER REAGAN, District Judge: This action is before the Court to rule on Plaintiff's motion to vacate judgment (Doc. 17), invoking either Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure. The Seventh Circuit has held that a motion challenging the merits of a district court order will automatically be considered as having been filed pursuant to 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); United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). If a motion challenging a judgment on the merits is served after ten days of the rendition of judgment, the motion falls under Rule 60(b).'" Id. (citations omitted). Judgment was entered in this action on March 13, 2009, but the instant motion was not filed until May 14, well after the 10-day period expired. See FED.R.CIV.P. 59(e). Therefore, as a Rule 59(e) motion, the motion is time-barred. Under Deutsch, the Court will thus construe the motion as filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b) provides for relief from judgment for "mistake, inadvertence, surprise, or excusable neglect." 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. 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 60(b)."). In his motion, Plaintiff argues that the Court misconstrued his allegations and then did not properly analyze those allegations in light of the legal standards for an Eighth Amendment medical care claim. Such an argument does not suggest the type of clerical mistake or inadvertence contemplated by Rule 60(b). Accordingly, the instant motion is DENIED. IT IS SO ORDERED. DATED this 4th day of June, 2009. s/ Michael J. Reagan MICHAEL J. REAGAN United States District Judge

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