SWALLERS v. MOORES et al

Filing 44

ENTRY Discussing Selected Matters - This matter is before the Court on numerous matters filed on January 8, 2016. (See Dkts. No. 37, 38, 39, 40, 41 and 42). Given his pro se status, the Court liberally construes the documents filed on January 8, 2016, and those documents will be treated in the aggregate as a motion to alter or amend judgment. Accordingly, the motion to alter or amend judgment, consisting of the aggregate of the petitioner's filings of January 8, 2016, is DENIED. Mr. Swallers' renewed request that the undersigned recuse is DENIED. Copy to Petitioner via U.S. Mail. Signed by Judge Tanya Walton Pratt on 1/13/2016.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRENT SWALLERS,

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Petitioner,
vs.
MARILYN MOORES, et al.,
Respondents.

No. 1:15-cv-01560-TWP-MJD

Entry Discussing Selected Matters
I.
This matter is before the Court on numerous matters filed on January 8, 2016. (See Dkts.
No. 37, 38, 39, 40, 41 and 42).
Mr. Swallers’ Petition for Writ of Habeas Corpus was dismissed through the docketing of
a final judgment on December 22, 2015. (Dkt. No. 32). That final judgment has not been
vacated or modified. Following the Court’s entry of final judgment, on January 8, 2016, Mr.
Swallers’ filed several Notices, a copy of a purported “Order to Show Cause,” and a Writ of
Error Quae Coram Nobis Resident. Given his pro se status, the Court liberally construes the
documents filed on January 8, 2016, and those documents will be treated in the aggregate as a
motion to alter or amend judgment. See Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th
Cir. 2006) (explaining that whether a motion filed within the time frame contemplated by Rule
59(e) 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).
II.
A litigant subject to an adverse judgment, and who seeks reconsideration by the district

court of that adverse judgment, may “file either a motion to alter or amend the judgment pursuant
to Fed.R.Civ.P. 59(e) or a motion seeking relief from the judgment pursuant to Fed.R.Civ.P.
60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Rule 59(e) provides a basis for relief, where, as here, a party challenges the Court's
application of the law to the facts of the case. See Osterneck v. Ernst & Whinney, 489 U.S. 169,
174–76 (1989) (concluding that Rule 59(e) was intended to apply to the reconsideration of matters
encompassed within the merits of a judgment). 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)).
Relief through a Rule 59(e) motion for reconsideration is an “extraordinary remed[y]
reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). A Rule
59(e) motion may be used “to draw the district court’s attention to a manifest error of law or fact
or to newly discovered evidence.” United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010). A
“manifest error” means “wholesale disregard, misapplication, or failure to recognize controlling
precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000); see also Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)(a motion to
reconsider is proper only when “the Court has patently misunderstood a party, or has made a
decision outside the adversarial issues presented to the Court by the parties, or has made an error
not of reasoning but of apprehension.”).
There was no manifest error of law or fact in this case. The court did not misapprehend the
petitioner’s claims, nor did it misapply the law to those claims in finding that dismissal was
required. Accordingly, the motion to alter or amend judgment, consisting of the aggregate of the

petitioner’s filings of January 8, 2016, is DENIED.
III.
The motion to alter or amend judgment referenced in Part I of this Entry contains a renewed
request that the undersigned recuse. This renewed request is based on the petitioner’s disagreement
with the course of proceedings herein and with the disposition of the case. These are not
circumstances warranting recusal, Liteky v. United States, 510 U.S. 540, 555 (1994) (“opinions
formed by the judge on the basis of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless
they display a deep-seated favoritism or antagonism that would make fair judgment impossible”).
Accordingly, Mr. Swallers’ renewed request that the undersigned recuse is DENIED.
SO ORDERED.

Date: 1/13/2016

Distribution:
BRENT ALLEN SWALLERS
539 S. Auburn St.
Indianapolis, IN 46241