SMITH v. SMITH et al

Filing 61

ORDER denying Plaintiff's 57 Motion for Reconsideration (See Order) (copy to plaintiff via U.S. Mail). Signed by Judge Jane Magnus-Stinson on 8/5/2011. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

ERIC D. SMITH,
Plaintiff,
v.
JENNIFER SMITH et al.,
Defendants.

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No. 1:10-cv-256-JMS-MJD

Entry Discussing Motion to Reconsider
Denial of Motion for Release Order
I.
This is a civil rights action brought pursuant to 42 U.S.C. ' 1983 in which Eric
Smith, a state prisoner, challenges his treatment and the conditions of his confinement
at the New Castle Correctional Facility. The focus of the matter at present is resolution
of the defendants’ affirmative defense that Smith did not exhaust his available
administrative remedies prior to filing suit. Smith has just recently alerted the court of his
readiness for the hearing required pursuant to Pavey v. Conley, 544 F.3d 739, 740-41
(7th Cir. 2008).
In his motion for release order filed on May 26, 2011, Smith sought an order
directing his release from the custody of the Superintendent of the state prison where
Smith was confined. That motion was addressed in the Entry of July 7, 2011, wherein
the court noted that: 1) Smith’s custodian is not a party to this case; 2) this is not a case
in which Smith even challenges the fact or duration of his confinement through the
issuance of a writ of habeas corpus; 3) the motion did not make reference to the partial
stay which is in effect until the affirmative defense of failure to exhaust available
administrative remedies is resolved; 4) the motion “recites in imprecise terms that he
has served one-half of his 20-year sentence and that he is therefore entitled to be
released”; 5) Smith’s sole avenue in federal court to obtain release from state custody is
through an action for a writ of habeas corpus; 6) the motion made reference to Smith’s
restricted filing status in the Seventh Circuit and implied--incorrectly--that he is thereby
barred from seeking habeas corpus relief. The court summarized these circumstances:
“through his motion for release order Smith seeks relief from a non-party, seeks relief
which is not available in this case, seeks to circumvent the proper manner in which to
seek his release, and fails to remotely suggest that the court could or should consider
ordering his release as an adjunct of the claims.”

Smith’s motion for release order was therefore denied.
II.
Smith seeks reconsideration of the denial of his motion for release order. He
does not dispute any aspect of the ruling of July 6, 2011, but stresses that he has no
other available remedy. That is doubtful, but even if true it does not make an
unavailable remedy an appropriate one. It begs the question to assert an imperative
(Smith is being illegally held past his date of release) and that a remedy for the
imperative must be crafted. Smith has failed to link his concern with any claim in this
case, and his assertion that his continued restraint is a “condition of confinement” rather
than a challenge to the computation of his sentence is meritless. Smith also repeats his
claim that the appellate order restricting him from filing certain litigation in the federal
district courts in the Seventh Circuit is unconstitutional. His argument on this point is
unpersuasive, but in any event this court is without the authority to disregard that
appellate order to accommodate Smith’s point of view.
“A motion to reconsider asks that a decision be reexamined in light of additional
egal arguments, a change of law, or an argument that was overlooked earlier . . . .”
Patel v. Gonzales 442 F.3d 1011, 1015-1016 (7th Cir. 2006). Because Smith’s motion
for reconsideration fails to present such material, that motion [57] is denied.
IT IS SO ORDERED.

Date:

08/05/2011
_______________________________

Distribution:
Eric D. Smith
#112675
Wabash Valley Long Term Segregation
6908 S. Old US Highway 41
Carlisle, IN 47838
Bruce Benjamin Paul
[e-mail]

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana