clarifying that “the former approach-that, no matter what their substance, all post- judgment motions filed within [28] days of judgment would be considered as Rule 59(e) motions – no longer applies”
How later courts described this case
- clarifying that “the former approach-that, no matter what their substance, all post- judgment motions filed within [28] days of judgment would be considered as Rule 59(e) motions – no longer applies”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BOBBY TATUM,
Plaintiff,
v. Case No. 21-cv-1101-NJR
ROB JEFFREYS, et al.,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on Plaintiff Bobby Tatum’s Objection to the
threshold order (Doc. 19). Although entitled an “Objection,” Tatum asks the Court to
reconsider its ruling dismissing a number of Defendants during its review of the merits
pursuant to 28 U.S.C. §1915A.
Although Tatum lists several Federal Rules of Civil Procedure, the motion will
automatically be considered as having been filed pursuant to Rule 59(e) or Rule 60(b) of
the Federal Rules of Civil Procedures. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir.
1994). “[W]hether a motion filed within [28] days of the entry of judgment should be
analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on
the timing or label affixed to it.” Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008)
(emphasis in the original) (citing Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir.
2006) (clarifying that “the former approach-that, no matter what their substance, all post-
judgment motions filed within [28] days of judgment would be considered as Rule 59(e)
motions – no longer applies”)). Nevertheless, a motion to reconsider filed more than 28
days after entry of the challenged order “automatically becomes a Rule 60(b) motion.”
Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994) (citing United States v. Deutsch,
981 F.2d 299, 301 (7th Cir. 1992)); see also Talano v. N.W. Med. Faculty Found., Inc., 273 F.3d
757, 762 (7th Cir. 2001).
A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be
granted if a movant shows there was a mistake of law or fact, or presents newly
discovered evidence that could not have been discovered previously. Matter of Prince,
85 F.3d 314, 324 (7th Cir. 1996), reh’g and suggestion for reh’g en blanc denied, cert. denied 519
U.S. 1040; Deutsch v. Burlington N. R. Co., 983 F.2d 741 (7th Cir. 1993). “‘[M]anifest error’
is not demonstrated by the disappointment of the losing party. It is the wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal citations omitted). A
movant may not use a Rule 59(e) motion to present evidence that could have been
submitted before entry of the judgment. Obriecht, 517 F.3d at 494 (citing Sigsworth v. City
of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007)).
Rule 60(b) provides for relief from judgment for “mistake, inadvertence, surprise,
or excusable neglect.” Fed. R. Civ. P. 60(b)(1). Rule 60(b) relief is an extraordinary remedy
and is granted only in exceptional circumstances. McCormick v. City of Chicago, 230 F.3d
319, 327 (7th Cir. 2000) (citing Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994)).
Rule 60(b) allows a court “to address mistakes attributable to special circumstances and
not merely to erroneous applications of law.” Russell v. Delco Remy Div. of Gen. Motors
Corp., 51 F.3d 746, 749 (7th Cir. 1995). It is also not an appropriate vehicle for rehashing
old arguments or for presenting arguments that should have been raised before the court
made its decision. Russell, 51 F.3d at 749; Rutledge v. United States, 230 F.3d 1041, 1052 (7th
Cir. 2000).
Tatum’s Objection fails under either standard. He fails to raise any mistake of law
or fact on the Court’s part. Instead, he merely disagrees with the Court’s rulings. He
repeats a number of the same allegations he made in his Complaint.
As to John Doe #1, Tatum argues that John Doe #1 failed to process his grievances
and, thus, interfered with his access to the courts. But the Court already noted that there
was no protected due process right in the grievance process and the unavailability of
administrative remedies does not bar potential litigants from bringing their claims (Doc.
14, p. 4). Thus, John Doe #1 was properly dismissed.
To the extent he again alleges that Rob Jeffreys was responsible for the conditions
of Tatum’s cell and had knowledge of those conditions as the IDOC Director, these
allegations were raised in the Complaint and the Court found that Tatum failed to state
a claim. His Complaint fails to allege that Jeffreys was personally aware of the conditions
that Tatum faced.
Tatum also takes issue with the Court’s dismissal of John Doe #’s 2, 3, and 4.
Tatum’s Complaint alleged that these individuals were liable in their supervisory roles
over John Doe #1 and C/O Williams, but supervisory liability is not recognized under
Section 1983. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Tatum now argues
that the John Does ordered the strip search conducted by C/O Williams, pointing to a
memo setting forth the responsibilities of the shakedown officer (Doc. 1, p. 14). The
document does not indicate that the John Does specifically ordered the strip search of
Tatum on the date in question or ordered C/O Williams to spray Tatum with mace as
alleged in the Complaint. Nor did Tatum allege in his statement of claim that the John
Does specifically ordered his improper search. To the extent Tatum wishes to amend his
Complaint to add these allegations, he would need to seek leave to amend. As these
allegations relate to his claim against C/O Williams, which has been severed into a new
case, Tatum would have to seek leave to amend in the severed case.
Tatum also objects to the severing of the claims against C/O Williams, but he
simply reiterates his allegations that he believes the strip search was done out of
harassment for filing grievances. His Complaint, however, lacked any allegations that
C/O Williams was aware of his grievances regarding his conditions of confinement and
that he conducted the strip search out of retaliation.
Finally, to the extent Tatum also takes issue with the Court’s denial of his request
for injunctive relief, Tatum fails to offer anything new that would change the analysis of
his request for a temporary restraining order. Tatum merely states that his case is
jeopardizing Defendants’ jobs, but as with his initial motion for temporary restraining
order he offers only his beliefs and no facts to support those beliefs. To the extent he again
seeks outside medical care, he has not raised any deliberate indifference to medical care
claims in his Complaint. Accordingly, his motion for injunctive relief was properly
denied.
For the reasons stated above, Tatum’s motion to reconsider (Doc. 19) is DENIED.
To the extent Tatum again seeks counsel (Doc. 19, p. 4), Defendants have not filed
Answers, and a scheduling order has not been entered. Thus, counsel is not needed at
this time. Once the Court has entered a scheduling order allowing for discovery, Tatum
may renew his request for counsel should he experience difficulties conducting discovery
on his own.
IT IS SO ORDERED.
DATED: January 11, 2022 7 g 2
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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