Castellano v. Mahin et al

Filing 13

ORDER signed by Judge J.P. Stadtmueller on 4/6/2017: DENYING 12 Plaintiff's Motion for Reconsideration and DENYING 10 , 11 Plaintiff's Motions for Extension of Time. (cc: all counsel, via mail to John J. Castellano at Racine Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN J. CASTELLANO,
Plaintiff,
v.

Case No. 17-CV-294-JPS

REBECCA MAHIN and WISCONSIN
DEPARTMENT OF CORRECTIONS
DIVISION OF COMMUNITY
CORRECTIONS,

ORDER

Defendants.
On March 30, 2017, the Court dismissed this action for Plaintiff’s
failure to pay his initial partial filing fee (“IPFF”) as required by the in forma
pauperis statute and the Prisoner Litigation Reform Act. See 28 U.S.C. §
1915(a) and (b). On April 4, 2017, Plaintiff filed a motion for reconsideration
of that decision. (Docket #12). Plaintiff fails to cite any legal support for his
reconsideration request. Id. Only two rules potentially apply, however, and
neither aids Plaintiff here.
Federal Rule of Civil Procedure (“FRCP”) 60(b) offers relief from a
court’s orders or judgments if a party can show “the narrow grounds of
mistake, inadvertence, surprise, excusable neglect, newly discovered
evidence, voidness, or ‘any other reason justifying relief from the operation
of the judgment.’” Tylon v. City of Chicago, 97 F. App’x 680, 681 (7th Cir. 2004)
(quoting FRCP 60(b)(6)).1 Such relief “is an extraordinary remedy and is

1

Tylon quotes the previous version of FRCP 60(b)(6), but the verbiage
change in 2007 was not intended to be substantive. See Fed. R. Civ. P. 60, Advisory
Committee Notes, 2007 Amendment.

granted only in exceptional circumstances.” Harrington v. City of Chicago, 443
F.3d 542. 546 (7th Cir. 2006).
Plaintiff’s motion states that “through no fault of mine” he could not
meet the IPFF payment deadline. (Docket #12 at 1). He provides a timeline
of events related to his IPFF payment, where he apparently relied on his
brother to make the payment. Id. at 2. This is no excuse; Plaintiff alone is
responsible for paying his filing fees. If he chooses to ask for help from a
third party, he bears the risk that the person will not timely pay the fee. In
any event, Plaintiff fails to address any of the specific FRCP 60(b) grounds for
relief. Banks v. Chicago Bd. of Educ., 750 F.3d 663, 667 (7th Cir. 2014) (“The
district court does not abuse its discretion by denying a Rule 60(b) motion
that is not based on one of the specified grounds for relief.”); Monzidelis v.
World's Finest Chocolate, Inc., 92 F. App’x 349, 353 (7th Cir. 2004) (FRCP 60(b)
motion denied because the movant “failed to even argue that mistake,
excusable neglect, newly discovered evidence, fraud, or other exceptional
circumstances had undermined the legitimacy of the prior judgment.”)
(emphasis in original). Plaintiff’s motion does not present the exceptional
circumstances required by FRCP 60(b).
The other potentially applicable rule is FRCP 59(e). See Obreicht v.
Raemisch, 517 F.3d 489, 493-94 (7th Cir 2008). “A Rule 59(e) motion will be
successful,” the Court of Appeals holds, “only where the movant clearly
establishes: (1) that the court committed a manifest error of law or fact, or (2)
that newly discovered evidence precluded entry of judgment.” Cincinnati Life
Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013) (quotation omitted).
Plaintiff does not even suggest that the Court committed a manifest error of
law or fact. To the extent Plaintiff would argue that his dealings with his
brother constitute new evidence, the Court again rejects that excuse.
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In sum, the plaintiff’s motion does not merit relief under either FRCP
60(b) or 59(e), and must therefore be denied. Plaintiff also filed two motions
for extensions of time related to the IPFF payment. (Docket #10 and #11).
They arrived after the Court’s judgment was issued, and make the same
arguments as the motion for reconsideration. Id. They will be denied for the
same reasons.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#12) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motions for an extension
of time (Docket #10 and #11) be and the same are hereby DENIED.
Dated at Milwaukee, Wisconsin, this 6th day of April, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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