De Jesus v. Murphy et al

Filing 34

ORDER signed by Judge Lynn Adelman on 03/13/2018. The court DENIES 33 plaintiffs motion for relief from judgment pursuant to Rule 60(b). (cc: all counsel, Plaintiff) (lls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
MIGUEL DE JESUS,
Plaintiff,
v.

Case No. 16-CV-1647

PATRICK MURPHY,
Defendant.
______________________________________________________________________
ORDER
On May 5, 2017, defendants filed a motion for summary judgment based on
plaintiff’s failure to exhaust the available administrative remedies. Docket No. 18.
Despite my instructions to closely review the requirements described in Federal and
Local Rules 56 (see Docket No. 23 at 2), plaintiff did not file a response brief nor did he
respond to defendant’s proposed findings of fact. Instead, he filed a handful of
documents, including inmate complaints, decisions on those complaints, and his inmate
complaint history report. See Docket No. 27. After finding that the documents submitted
by plaintiff supported defendant’s assertion that plaintiff had failed to exhaust the
available administrative remedies before he filed his federal complaint, I granted
defendant’s motion and dismissed the case. Docket No. 31.
On February 15, 2018, plaintiff filed a motion seeking relief from judgment
pursuant to Fed. R. Civ. P. 60(b). Docket No. 33. Relief under this rule “is an
extraordinary remedy granted only in exceptional circumstances.” Rutlege v. U.S., 230
F.3d 1041, 1052 (7th Cir. 2000) (citations omitted). A plaintiff cannot use this rule as an
opportunity to present evidence that he could have, with due diligence, presented

“before judgment on the motion from which the [plaintiff] is seeking relief.” Id. (citations
omitted).
That is precisely what plaintiff is attempting to do here. In his Rule 60(b) motion,
plaintiff argues, for the first time, that the administrative remedies were unavailable to
him because of his poor mental and physical heath. Plaintiff presents evidence to
support his argument, but the evidence was available to him at the time he responded
to defendant’s motion. As such, plaintiff’s arguments are too late. He is not entitled to
relief under Rule 60(b). See Caisse Nationale de Credit Agricole v. CBI Industries, Inc.,
90 F.3d 1264, 1270 (7th Cir. 1996) (“Belated factual or legal attacks are viewed with
great suspicion, and intentionally withholding essential facts for later use on
reconsideration is flatly prohibited. Reconsideration is not an appropriate forum for . . .
arguing matters that could have been heard during the pendency of the previous
motion.”)
Therefore, the court DENIES plaintiff’s motion for relief from judgment pursuant
to Rule 60(b) (Docket No. 33).
Dated at Milwaukee, Wisconsin, this 13th day of March, 2018.

s/Lynn Adelman_____________
LYNN ADELMAN
United States District Judge

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