Balsewicz v. Moungey et al

Filing 64

ORDER signed by Magistrate Judge William E Duffin on 11/17/2022 DENYING 61 Plaintiff's Motion for Reconsideration of 59 Order on Motion for Partial Summary Judgment. (cc: all counsel and mailed to pro se Plaintiff)(lz)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN H. BALSEWICZ, also known as
MELISSA BALSEWICZ,
Plaintiff,
v.

Case No. 21-CV-746

JAMIE MOUNGEY, et al.,
Defendants.
ORDER
On October 27, 2022, pro se plaintiff John H. Balsewicz a/k/a Melissa Balsewicz
filed a motion requesting that the court reconsider its decision to granting summary
judgment in favor of defendants Sgt. Johnathan Pawlyk, Anthony Meli, Yana Puisch
and Leigha Weber on a claim for failure to exhaust administrative remedies against
them on that claim and its decision to dismiss Meli, Puisch, and Weber because no
claims against them remained. (ECF No. 61.) Balsewicz asserts that the court
improperly decided not to consider inmate complaints filed after the lawsuit was
commenced as evidence of exhaustion against the above-mentioned defendants, and
that the court should have determined the two unnumbered inmate complaints were
evidence of the exhaustion of administrative remedies.
Balsewicz does not cite a Federal Rule in support of her motion. There are two
possible rules that could apply—Federal Rule of Civil Procedure 59(e) and Federal

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Rule of Civil Procedure 60(b). Fed. R. Civ. P. 59(e) allows a party to file a motion to
alter or amend a judgment within twenty-eight days of the court entering judgment.
“Rule 59(e) allows a court to alter or amend a judgment only if the petitioner can
demonstrate a manifest error of law or present newly discovered evidence.” Obriecht
v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing Sigsworth v. City of Aurora, 487
F.3d 506, 511-12, (7th Cir. 2007)). Rule 60(b) allows a court within a “reasonable time”
after entry of judgment to grant relief from a final judgment for a specific set of
reasons, including “mistake, inadvertence, surprise, or excusable neglect,” newly
discovered evidence, or fraud or misconduct. Rule 60(b)(6) allows a court to grant
relief from judgment for “any other reason that justifies relief,” but the movant
seeking such relief “must show extraordinary circumstances justifying the reopening
of a final judgment.” Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015) (citing
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)).
Balzewicz does not present evidence of a manifest error of law or newly
discovered evidence. Nor does she demonstrate circumstances that would justify
relief under Rule 60(b). At most she takes issue with the way the court evaluated and
applied the law to her inmate grievances. This is not a basis for granting relief from
judgment. See Oto v. Metropolitan Life Ins. Co., 244 F.3d 601, 606 (7th Cir. 2000)
(holding that a motion that “merely took umbrage with the court’s ruling and
rehashed arguments” was properly rejected by the district court). As such, her motion
is denied.

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NOW, THEREFORE, IT IS HEREBY ORDERED that Balsewicz’s motion
for reconsideration (ECF No. 61) is DENIED.
Dated in Milwaukee, Wisconsin this 17th day of November, 2022.

BY THE COURT

WILLIAM E. DUFFIN
United States Magistrate Judge

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