Garcia v. Boughton

Filing 26

ORDER signed by Judge J.P. Stadtmueller on 8/24/2017 DENYING 25 Petitioner's Motion for Reconsideration and Request for Certificate of Appealability. (cc: all counsel, via mail to Victor Garcia at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VICTOR GARCIA,
Petitioner,

v.

Case No. 17-CV-421-JPS-JPS

GARY BOUGHTON,
Respondent.

ORDER

On June 30, 2017, the Court granted Respondent’s motion to dismiss.
(Docket #20). On August 23, 2017, Petitioner filed a motion for
reconsideration of that decision. (Docket #25). Petitioner fails to cite any
legal support for his reconsideration request. Id. Only two rules potentially
apply, however, and neither aids him 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 granted only in exceptional circumstances.” Harrington v. City of Chicago,
443 F.3d 542, 546 (7th Cir. 2006).
Petitioner’s motion simply offers his disagreement with the Court’s
ruling. He fails to address any of the specific FRCP 60(b) grounds for relief.

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.
1

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). Petitioner’s motion does not present the exceptional
circumstances required by FRCP 60(b).
The other potentially applicable rule is FRCP 59(e), which permits a
Court to alter or amend a judgment. See Obreicht v. Raemisch, 517 F.3d 489,
493-94 (7th Cir 2008). Such a motion must, however, be filed no more than
28 days after the judgment is issued. Fed. R. Civ. P. 59(e). Petitioner’s
motion for reconsideration thus comes far too late to invoke FRCP 59(e).
Petitioner’s motion does not merit relief under either FRCP 60(b) or
59(e), and must therefore be denied. Petitioner’s motion generally seeks a
“clarification” of the Court’s dismissal order, but that is not the proper
subject of a motion for reconsideration. If he disagrees with the Court’s
ruling, his avenue for redress goes through the Court of Appeals.2
Accordingly,
IT IS ORDERED that Petitioner Victor Garcia’s motion for
reconsideration (Docket #25) be and the same is hereby DENIED.

Petitioner also asks that the Court reconsider granting him a certificate of
appealability, but that request fails for the same reasons discussed above.
2

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Dated at Milwaukee, Wisconsin, this 24th day of August, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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