SMITH v. BASINGER

Filing 37

Order Discussing Petitioner's Motion to Re-open Case - denying 36 Motion to re-open case. (See Order.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 4/30/2012. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ERIC D. SMITH,
Petitioner,
v.
SUPERINTENDENT BASINGER,
Respondent.

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No. 2:10-cv-293-JMS-DML

Order Discussing Petitioner’s Motion to Re-open Case
This action in which Eric Smith sought a writ of habeas corpus was dismissed
without prejudice in a Judgment entered on the clerk’s docket on April 29, 2011.
Smith has filed a motion to re-open case, which because of its timing relative to
the entry of final judgment on the clerk’s docket, must be treated as a motion for
relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
See United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992) (“substantive motions
to alter or amend a judgment served more than ten days after the entry of judgment
are to be evaluated under Rule 60(b).”).1
Smith’s post-judgment motion [36] is denied for these reasons: First, it was
not brought within a “reasonable time” as required by Fed.R.Civ.P. 60(c). Second, it
seeks relief premised on an asserted legal error, which is not a valid basis upon which
relief can be granted under rule 60(b). See Marques v. FRB, 286 F.3d 1014, 1018-19
(7th Cir. 2002) ("A legal error is not one of the specified grounds for [a 60(b) motion].
In fact, it is a forbidden ground."). And third, this action was dismissed without
prejudice. “[A]fter a dismissal without prejudice, the plaintiff can resurrect his
lawsuit only by filing a new complaint.” U.S. v. Ligas, 549 F.3d 497, 503 (7th Cir.
2008).
IT IS SO ORDERED.
_______________________________

04/30/2012
Date: __________________

1The

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

current version of Rule 59 of the Federal Rules of Civil Procedure permits a Rule 59(e)
motion to be filed within 28 days after the entry of judgment. This change is of no consequence here,
where Smith's post judgment motion was filed more than 28 days after the entry of judgment.

Distribution:
Eric D. Smith
DOC #112675
Wabash Valley Correctional Facility - Inmate Mail/Parcels
6908 S. Old U.S. Highway 41
P.O. Box 1111
Carlisle, IN 47838
[e-mail]