BIGSBY v. STATE OF INDIANA et al

Filing 13

ENTRY - Plaintiff's 12 Motion for Relief from Order, treated as a Motion to Alter or Amend Judgment is DENIED. Signed by Judge Jane Magnus-Stinson on 8/30/2012. Copy mailed to Plaintiff via U.S. Mail. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NICK BIGSBY,
Plaintiff,
vs.
STATE OF INDIANA, et al.,
Defendants.

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1:12-cv-709-JMS-TAB

ENTRY
This civil rights action brought by an Indiana prisoner was dismissed on
June 14, 2012, based on the court’s determination that the complaint failed to state
a claim upon which relief could be granted and that its dismissal pursuant to 28
U.S.C. § 1915A(b) was therefore mandatory.
The dismissal of the action was followed by the filing and denial of the
plaintiff’s motion for relief from judgment and by issuance of a collection order
pursuant to 28 U.S.C. § 1915(b)(“the collection order”). Issuance of the collection
order, in turn, has been followed with the filing on August 6, 2012, of the plaintiff’s
motion for relief from judgment or order. The most recent motion was filed within
28 days from the issuance of the collection order.
Given the timing of the motion for relief from order relative to the issuance of
the collection order, and given the arguments set forth in such motion, the motion is
treated as a motion to alter or amend judgment pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure. See Borrero v. City of Chicago, 456 F.3d 698, 70102 (7th Cir. 2006) (explaining that whether a motion filed within 10 days of the
entry of judgment should be analyzed under Rule 59(e) or Rule 60(b) of the Federal
Rules of Civil Procedure depends on the substance of the motion, not on the timing
or label affixed to it); Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989)(noting
that Rule 59(e) encompasses reconsideration of matters decided on the merits).
The purpose of a motion to alter or amend judgment under Rule 59(e) is to
have the court reconsider matters "properly encompassed in a decision on the
merits." Osterneck v. Ernst and Whinney, 489 U.S. 169, 174 (1988). Rule 59(e)
"authorizes relief when a moving party 'clearly establish[es] either a manifest error

of law or fact' or 'present[s] newly discovered evidence.'" Souter v. International
Union, 993 F.2d 595, 599 (7th Cir. 1993) (quoting Federal Deposit Ins. Corp. v.
Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)).
There was in this case no manifest error of law or fact relative to the
collection order. The plaintiff filed this lawsuit. He did not prepay the $350.00 filing
fee. He sought waiver of the obligation to prepay the filing fee. That request was
granted, not pursuant to a state statute but pursuant to 28 U.S.C. § 1915. That
same statute, § 1915, requires the collection of the filing fee from an inmate’s
custodian in precise the manner specified in the collection order. Accordingly, the
motion for relief from order, treated as a motion to alter or amend judgment [12], is
denied.
IT IS SO ORDERED.

08/30/2012
Date: __________________

Distribution:
Nick Bigsby
#915268
Pendleton Correctional Facility
4490 West Reformatory Road
Pendleton, IN 46064

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