Phoneprasith et al v. Clarke

Filing 19

ORDER signed by Judge J.P. Stadtmueller on 10/13/2017 DENYING 17 Plaintiff's Motion for Reconsideration of Dismissal of Claim. (cc: all counsel, via mail to Robert Phoneprasith at Dodge Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT PHONEPRASITH,
Plaintiff,

v.

Case No. 17-CV-970-JPS-JPS

DAVID A. CLARKE, JR.,
Defendant.

ORDER

On September 7, 2017, the Court screened Plaintiff’s amended
complaint, allowing him to proceed on a substantive due process claim, and
dismissing an access-to-courts claim. (Docket #13). On September 28, 2017,
Plaintiff requested that the Court reconsider dismissal of the latter claim.
(Docket #17). Plaintiff’s motion is made pursuant to Federal Rule of Civil
Procedure (“FRCP”) 60(b). Id. at 1. This Rule 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).
Plaintiff’s motion merely asserts that the Court made a mistake of
law in dismissing the access-to-courts claim. (Docket #17 at 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.
1

(“Phoneprasith asserts that Judge J.P. Stadtmueller made a ‘mistake’ and/or
acted ‘inadvert[ly]’” in dismissing the claim) (quoting Fed. R. Civ. P.
60(b)(1)). Simply asserting “that the . . . court’s underlying judgment was
wrong . . . is an impermissible use of Rule 60(b).” Tylon, 97 F. App’x at 681.
In other words, allegations that a Court made “errors of law and fact
generally do not warrant relief under Rule 60(b)(1) and certainly do not
require such relief.” Banks v. Chicago Board of Educ., 750 F.3d 663, 667 (7th
Cir. 2014). Plaintiff cites no exceptional circumstances warranting relief
from the Court’s order, and the Court itself finds none upon which to grant
the extraordinary relief afforded by FRCP 60(b). Plaintiff’s motion must be
denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#17) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of October, 2017.
BY THE COURT:

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

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