LEE v. MARBERRY

Filing 10

ORDER denying petitioner's post-judgment 9 Motion to alter or amend judgment. Signed by Judge William T. Lawrence on 2/4/2010. cm (NKD)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA RONALD LEE, Petitioner, v. WARDEN HELEN J. MARBERRY, Respondent. ) ) ) ) ) ) ) )

No. 2:10-cv-0008-WTL-JMS

Entry Discussing Motion to Vacate, Alter, or Reconsider Judgment In an action filed after December 1, 2009, the Federal Rules of Civil Procedure permit a Rule 59(e) motion to be filed within 28 days after the entry of judgment. Whether a motion filed within the time period 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. Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006). 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). This civil rights action was filed after December 1, 2009. It was dismissed pursuant to 28 U.S.C. § 1915A(b) on January 28, 2010. The entry of judgment was followed by the filing of the petitioner's motion to vacate, alter or reconsider judgment (dkt 9) on February 2, 2010. Given the timing of the petitioner's motion to vacate, alter or reconsider judgment relative to the entry of final judgment, and given the arguments set forth in such motion, the motion is treated as a motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The Court of Appeals has explained that there are only three valid grounds for a Rule 59(e) motion­newly-discovered evidence, an intervening change in the law, and manifest error in law. See Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). There was in this case no manifest error of law or fact, and the petitioner does not submit newlydiscovered evidence or suggest that there has been a change in the law. The court did not misapprehend the petitioner's claim, nor did it misapply the law to that claim in light of the applicable law. Accordingly, the post-judgment motion to alter or amend judgment (dkt 9) is denied. IT IS SO ORDERED. _______________________________ Date: 02/04/2010 Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana

Distribution: Ronald Lee 15734-026 Terre Haute - FCI Federal Correctional Institution Inmate Mail/Parcels P.O. BOX 33 Terre Haute, IN 47808