ROBINSON v. WINKLER-YORK

Filing 6

ENTRY - ON MOTION TO RECONSIDER; The plaintiff's motion for reconsideration, treated as a motion for relief from judgment, (Dkt. 5] must be DENIED. Signed by Judge Tanya Walton Pratt on 10/7/2013. Copy Mailed. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOSH ROBINSON,
Plaintiff,
vs.
MELISSA WINKLER-YORK,
Defendant.

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) Case No. 1:13-cv-1059-TWP-MJD
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ENTRY ON MOTION TO RECONSIDER
This matter is before the Court on Plaintiff Joshua Robinson’s (“Mr. Robinson”) Motion
to Reconsider (Dkt. 5). On August 13, 2013, Mr. Robinson’s civil rights action brought under 42
U.S.C. § 1983 was dismissed without prejudice, because no viable claim was stated against the
plaintiff’s former attorney. The complaint was deficient because a private attorney or public
defender does not act under color of state law, one of the two essential elements in an action for
relief pursuant to 42 U.S.C. § 1983.
Mr. Robinson’s motion for reconsideration was filed more than 28 calendar days after the
entry of judgment on the clerk’s docket; therefore the motion is treated as a motion for relief
from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Malone v. Hanks,
2013 WL 1909480 (S.D.Ind. May 8, 2013)(citing Hope v. United States, 43 F.3d 1140, 1143 (7th
Cir. 1994), and United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992)).
Mr. Robinson does not challenge the disposition of the action as being incorrect, rather he
characterizes it as “harsh” and proposes instead that the court could and should have—and even
now can—“remand” the action to a state court. Under the circumstances of this case, by
“remand” Mr. Robinson actually means “transfer.” However, the federal district court is unable

to transfer the case or remand it to state court because the case did not originate from a state
court. There are situations in which a case which has been removed to federal court can or even
must be remanded to the state court. But there is no comparable authority or procedure for a case
originally filed in federal court to be transferred to a state court. Brown v. Pepsi Mid-America
Co., 2006 WL 2546804 (E.D.Mo. Sept. 1, 2006); Majek Fire Protection, Inc. v. Carusone
Construction, Inc., 2006 WL 1704562 (E.D.Pa. Jun.13, 2006). In this regard, the Court is not
being “harsh” but merely complying with legal precedence.
Accordingly, the plaintiff’s motion for reconsideration, treated as a motion for relief from
judgment, (Dkt. 5] must be DENIED.
SO ORDERED.

10/07/2013
Date: _________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
JOSH ROBINSON
174914
MIAMI CORRECTIONAL FACILITY
Inmate Mail/Parcels
3038 West 850 South
BUNKER HILL, IN 46914