Banks v. Whitley et al

Filing 10

IT IS HEREBY ORDERED that Plaintiff's motion to reconsider judgment (Doc. 8) is GRANTED, and the Order Dismissing Case (Doc. 6) and Judgment (Doc. 7) are hereby VACATED. IT IS FURTHER ORDERED that Plaintiff's motion for voluntary dismissal of this action is GRANTED, and this action is DISMISSED without prejudice. As specified in the order at Document 5, Plaintiff shall not be assessed any filing fee for this action. Further, the dismissal of this action shall not count as one of Plaintiff's allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Judge Nancy J. Rosenstengel on 1/14/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL S. BANKS, # A-86938,
Plaintiff,
vs.
DARREN T. WHITLEY, et al.,
Defendants.

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Case No. 14-cv-1256-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court for review of Plaintiff’s motion to reconsider judgment
(Doc. 8). In the motion, Plaintiff asks the Court to vacate the judgment that was entered against
him on December 11, 2014 (Doc. 7). Plaintiff claims that he did not receive an initial order in
this case. A text order (Doc. 5), which was entered on November 6, 2014, offered Plaintiff the
option of voluntarily dismissing the case and avoiding a filing fee for this action by submitting a
request to the Court in writing by November 28, 2014. Due to a clerical error, Plaintiff’s
prisoner identification number was listed as “A86938” instead of “A81938” in CM/ECF.
The dismissal order (Doc. 6) and judgment (Doc. 7) also referred to the incorrect prisoner
identification number. As a result of this error, Plaintiff claims that he never received a copy of
the order at Document 5, and his receipt of the dismissal order and judgment was delayed.
Plaintiff now asks the Court to vacate the judgment against him and enter an order voluntarily
dismissing this action.
Plaintiff’s request is reasonable and shall be granted. Federal Rule of Civil Procedure
60(a) authorizes the Court to “correct a clerical mistake or a mistake arising from oversight or
omission whenever one is found in a judgment, order, or other part of the record.” FED. R. CIV.
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P. 60(a). Unfortunately, this clerical error was not discovered until after the dismissal order and
judgment were docketed. However, Rule 60(b) authorizes the Court to relieve a party from a
final judgment or order for reasons that include “mistake, inadvertence, surprise, or excusable
neglect” and for “any other reason that justifies relief.” See FED. R. CIV. P. 60(b)(1), (6).
In the pleadings filed to date in this action, Plaintiff consistently listed “A81938” as his
prisoner identification number in the case caption. Even so, the prisoner identification number
was erroneously listed as “A86938” in CM/ECF. It is not only conceivable, but predictable, that
this error might deprive Plaintiff of the opportunity to seek voluntary dismissal of this action by
the deadline originally set by the Court. Plaintiff claims that this was the reason he did not
request voluntary dismissal of the action before November 28, 2014, and the Court finds his
argument persuasive.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to reconsider
judgment (Doc. 8) is GRANTED, and the Order Dismissing Case (Doc. 6) and
Judgment (Doc. 7) are hereby VACATED.
IT IS FURTHER ORDERED that Plaintiff’s motion for voluntary dismissal of this
action is GRANTED, and this action is DISMISSED without prejudice. See FED. R. CIV. P.
41(a)(1)(A)(i). As specified in the order at Document 5, Plaintiff shall not be assessed any filing
fee for this action. Further, the dismissal of this action shall not count as one of Plaintiff’s
allotted “strikes” under the provisions of 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
DATED: January 14, 2015

______________________________
NANCY J. ROSENSTENGEL
United States District Judge
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