HOLTON, ERIC v. JEAGER, CAPTAIN

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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