Filing 18

ORDER denying 14 Motion to Set Aside Judgment ; denying as moot 17 Motion for a copy of the complaint upon reopening the case. Signed by Chief Judge Barbara B. Crabb on 3/11/2010. (eds),(ps)

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------ER IC HOLTON, ORDER Plaintiff, 0 7 - c v -2 4 1 - j c s 1 v. C APT AIN JAEGER, AMY MORALES, A . MORRIS and LIZZY TEAGLE, D efendan ts. --------------------------------------------O n April 30, 2007, plaintiff filed this civil action under 42 U.S.C. 1983, contending th at he was denied due process with regard to a prison disciplinary hearing. On May 15, 20 07 , Judge John C. Shabaz entered an order dismissing the case because plaintiff failed to state a claim under the Fourteenth Amendment. In the order, Judge Shabaz stated that u nd er Zinermon v. Burch, 439 U.S. 113 (1990), plaintiff had adequate state post deprivation remedies including administrative remedies, a state petition for a writ of habeas co rp us and a state court action for damages. On June 6, 2007, plaintiff filed a notice of Because Judge Shabaz has taken senior status, I am assuming jurisdiction over this case for the purpose of issuing this order. 1 1 app eal of the dismissal. On April 3, 2008, the Court of Appeals for the Seventh Circuit affirm ed Judge Shabaz's decision, explaining that because plaintiff was challenging the length o f his sentence, his appropriate remedy was to file a petition for a writ of habeas corpus and no t a civil action under 1983. Now, almost two years since his case was closed in this court, plaintiff has filed a m otio n to set aside the judgment. In his motion, plaintiff says that he has not been able to "seek damages in federal court under 42 U.S.C. 1983" and that it was error to conclude that he has adequate state court remedies. Fed. R. Civ. P. 60(b) allows a litigant to bring a motion for relief no later than one year from a final judgment for the following reasons: (1) mistake, inadvertence, surprise or excu sab le neglect; (2) newly discovered evidence that, with reasonable diligence, could not h a ve been discovered in time to move for a new trial under Rule 59(b); or (3) fraud, m isrepresentation, or misconduct by an opposing party. Plaintiff's motion cannot be co nsid ered a motion under this rule because he has not alleged any of these grounds and hje filed the motion more than a year after the entry of judgment. Also under Rule 60(b), a litigant can file a motion within a reasonable time for the fo llo w i ng grounds: (4) the judgment is void; (5) the judgment has been satisfied, released or d isch arged ; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Plaintiff 2 has not alleged any of these grounds. Instead, he attempts to re-argue the merits of his case by persisting that he be allowed to seek damages in a 1983 action. Because plaintiff has no t given any reasons for reopening this case, his motion must be denied. In a separate motion, plaintiff asks for a copy of his complaint upon reopening of this case. Plaintiff's motion will be denied as moot because I am denying his motion to reopen. OR DER IT IS ORDERED that 1. Plaintiff's motion to set aside the judgment, dkt. #14, is DENIED and 2. Plaintiff's request for a copy of the complaint upon reopening of the case, dkt. # 17 , is DENIED as moot. Entered this 11t h day of March, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge 3

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