MYERS v. INDIANA DEPARTMENT OF CORRECTION et al
Filing
22
ORDER denying Plaintiff's 21 Motion to Amend/Correct the dismissal of this action. The dismissal of this action counts as a "strike" pursuant to 28 U.S.C. § 1915(g). Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 9/1/2015. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JASON TYE MYERS,
Plaintiff,
vs.
INDIANA DEPARTMENT OF CORRECTION,
DONNA CARNEYGEE, TIM PURCELL,
KATHY GRIFFIN, ROBERT STAFFORD,
UNKNOWN PARTY (MS. WOODS),
UNKNOWN PARTY, RUSSEL HIATT and
L.A. VANATTA
Defendants.
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Case No. 1:15-cv-00471-TWP-MJD
Entry on Plaintiff’s Motion to Alter or Amend Judgment
This matter is before the Court on Plaintiff Jason T. Myers (“Mr. Myers”) Motion to Alter,
Amend, or Reverse Judgment. On August 11, 2015, this action was dismissed for failure to state
a claim upon which relief can be granted. (Dkt. 19). Mr. Myers has timely filed a motion to alter
or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure on August 28,
2015.
“To prevail on a Rule 59(e) motion, the moving party must clearly establish (1) that the
court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded
entry of judgment.” Edgewood Manor Apartment Homes, LLC v. RSUI Indem. Co., 733 F.3d 761,
770 (7th Cir. 2013) (internal quotation omitted). Rule 59(e) provides “extraordinary remedies
reserved for the exceptional case.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago &
NW Ind., 786 F.3d 510, 521 (7th Cir. 2015) (internal quotation omitted).
In his motion to alter, Mr. Myers argues that his claim is one of due process rather than
denial of his right to access the courts. He contends that his claim is based on the fact that the
Sheriff of Tippecanoe failed to properly bring him before a judicial officer after he was arrested in
2004. What Mr. Myers fails to mention in his motion to alter is that he filed a complaint in 2009
in Tippecanoe County for wrongful incarceration and that case was dismissed based on the statute
of limitations. Any claim for due process based on the circumstances that occurred in 2004 fails to
state a claim upon which relief can be granted based on res judicata and the statute of limitations.
Not only has Mr. Myers improperly attempted to change his claim after judgment was issued, but
even if he had brought a due process claim in his amended complaint, it would have been
dismissed.
The denial of access claim was properly dismissed because Mr. Myers has not shown that
there was merit to his Tippecanoe County appeal. See Burd v. Sessler, 702 F.3d 429, 434-35 (7th
Cir. 2012). Contrary to Mr. Myers’s argument, having “settlement value” is not sufficient to show
a meritorious claim in the context of stating a claim for denial of access to courts. As noted, Mr.
Myers cannot re-litigate in this case his claim for wrongful incarceration. See also Heck v.
Humphrey, 512 U.S. 477 (1994) (to recover damages for allegedly unconstitutional conviction
plaintiff must first show that the conviction has been reversed or invalidated).
Mr. Myers has not shown a manifest error of law or fact, and therefore his motion to alter
the dismissal of this action [dkt. 21] is denied. The dismissal of this action counts as a “strike”
pursuant to 28 U.S.C. § 1915(g).
IT IS SO ORDERED.
Date: 9/1/2015
Distribution:
JASON T. MYERS 154417
PLAINFIELD CORRECTION FACILITY
Inmate Mail/Parcels
727 Moon Road
Plainfield, IN 46168
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