Merritte v. Kessell et al

Filing 352

ORDER DENYING 349 MOTION filed by Calvin Merritte, 350 MOTION for Preliminary Injunction filed by Calvin Merritte, and 351 MOTION for Order filed by Calvin Merritte. Signed by Magistrate Judge Reona J. Daly on 5/22/2019. (ely)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALVIN MERRITTE,

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Plaintiff,
v.
C/O KESSEL, et al.,
Defendants.

Case No. 12-263-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff, Calvin Merritte, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging his constitutional
rights were violated while he was incarcerated at Lawrence Correctional Center.

Plaintiff

proceeded in this case on a claim of retaliation against Defendants Kessel and Gangloff and a claim
of failure to protect against Defendant Hodge.
On May 17, 2019, Plaintiff filed a motion for relief from judgment (Doc. 349). This
motion is now before the Court. For the reasons set forth below, the motion is DENIED.
RELEVANT BACKGROUND
On June 6, 2017, Plaintiff, through appointed counsel, filed a Stipulation of Dismissal
(Doc. 312) and an Order Dismissing Case (Doc. 313) was entered. On November 27, 2017,
Plaintiff filed a Motion to Reinstate this Action (Doc. 315). Following a hearing, the Court
granted Plaintiff’s motion and reinstated the case on December 21, 2017 (Doc. 322).
On January 5, 2018, Attorney Nathaniel Schmitz was assigned as new counsel for Plaintiff.
On March 30, 3018, Plaintiff was released from custody. The Court held a status conference on
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June 14, 2018 and re-set the case for trial (Doc. 331). On September 25, 2018, counsel for
Plaintiff informed the Court that for two months he had made multiple attempts to reach Plaintiff
via phone and mail and Plaintiff had not responded. The Court issued an Order on September 25,
2018, requiring Plaintiff to show cause and explain why the matter should proceed given his failure
to notify his counsel of his current contact information and to assist with the preparation of his
case for trial (Doc. 338). He was warned that his failure to file a response to the Show Cause
Order “will result in dismissal of this lawsuit with prejudice.” Plaintiff failed to timely file a
response to the Order and there was no indication that the Court’s Order was not delivered to
Plaintiff.
On October 15, 2018, the Court dismissed this case for failure to prosecute and judgment
was entered. The Court found that Plaintiff’s inaction and unwillingness to communicate with
his counsel demonstrated a clear record of delay and contumacious conduct that needlessly delayed
the litigation. Plaintiff was provided an explicit warning that his failure to respond to the Court’s
Show Cause Order would result in dismissal.
LEGAL STANDARDS
Although Plaintiff fails to cite the particular rule that serves as the basis for his motion, he
acknowledges the motion was not filed within 28 days after the entry of judgment as required by
Rule 59. The Court finds that given his request and the timing thereof, Federal Rule of Civil
Procedure 60(b) controls. It is well settled that relief pursuant to Rule 60(b) is an extraordinary
remedy and is granted only in exceptional circumstances. McCormick v. City of Chicago, 230
F.3d 319, 327 (7th Cir. 2000) (citation omitted). Under Rule 60(b), a court may relieve a party
from an order where there is “mistake, inadvertence, surprise, or excusable neglect,” “newly
discovered evidence that, with reasonable diligence could not have been discovered in time to
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move for a new trial,” or “fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b). “Motions for
reconsideration serve a limited function: to correct manifest errors of law or fact or to present
newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th
Cir. 1987).
DISCUSSION
Plaintiff argues his case should be reinstated because his appointed counsel “never
successfully informed me of any miscommunications.” Plaintiff further argues on November 15,
2018, he was incarcerated at LaSalle County Jail and deprived of mail and legal materials which
interfered with his ability to litigate his cases.
Plaintiff has failed to set forth any explanation as to why he stopped communicating with
appointed counsel as early as July 2018. Further, Plaintiff provides no justification as to why he
failed to respond to the Court’s Order to Show Cause (Doc. 338) entered on September 25, 2018.
It appears Plaintiff lost interest in litigating this case after he was released from custody and no
longer incarcerated. Only after Plaintiff was re-incarcerated has he decided now, seven months
after Judgment was entered, that he is once again interested in litigating this case. Plaintiff fails
to set forth any appropriate basis on which to seek reconsideration. Plaintiff’s Motion for Relief
from Judgment is DENIED.
Plaintiff’s Motion for Preliminary and Permanent Injunctions (Doc. 350) and Motion for
Court Order (Doc. 351) are DENIED.
IT IS SO ORDERED.

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DATED: May 22, 2019
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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