McNeal

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CAMERON BELK, SR., )

)

Plaintiff, )

)

vs. ) Case No. 21-cv-142-DWD

)

DR. DAVID MARCOWITZ and DR. )

VIPIN SHAH, )

)

Defendants.

MEMORANDUM & ORDER

DUGAN, District Judge:

This matter is before the Court on Plaintiff’s motions to alter or amend judgment

or for relief from judgment, filed pursuant to Federal Rules of Civil Procedure 59(e) and

60(b)(1), (3), and (6). (Docs. 262 and 266). Also pending is Plaintiff’s Motion for Leave to

Appeal in forma pauperis. (Doc. 269). For the reasons that follow, the motions are DENIED.

I. BACKGROUND

On May 9, 2025, following the Court’s grant of Defendants’ Motion for Extension

of Time (Docs. 246, 247), Defendants filed their Motion for Summary Judgment,

Memorandum in Support, and Rule 56 Notice. (Docs. 248, 249, 251). Plaintiff filed a timely

response on June 12, 2025, together with exhibits. (Doc. 253). Defendants filed a reply on

June 26, 2025. (Doc. 254), and on July 10, 2025, Plaintiff filed a surreply, expressly

addressing arguments raised in Defendants’ reply (Doc. 255).

On February 2, 2026, Plaintiff filed a Motion for Status inquiring about the posture

of the case after the extension of time for dispositive motions. (Doc. 256). The Court

granted the motion the next day, expressly advising Plaintiff that it had received

Defendants’ summary-judgment and related briefing (Docs. 249, 250, 253, 254 & 255), had

taken the motion under advisement, and that an order on the motion would follow. (Doc.

257). All referenced orders were mailed to Plaintiff at his last known address; none were

returned as undeliverable.

On February 27, 2026, the Court granted summary judgment for Defendants and

entered judgment. (Docs. 258, 259). In its Memorandum and Order, the Court explained

that Plaintiff’s response, statement of additional material facts, and affidavit failed to

create any genuine issue of material fact under Rule 56 because they consisted of

conclusory assertions unsupported by admissible record evidence and because Plaintiff’s

personal log (first produced with his summary-judgment response) had been withheld

during discovery in violation of Rule 26 and was therefore stricken under Rule 37(c)(1).

On March 2, 2026, Plaintiff filed a Notice Regarding Failure of Service asserting

that he had never received Defendants’ summary-judgment motion or related briefing.

(Doc. 260). Defendants responded with documentary evidence of service by mail and

email. (Doc. 261). The Court denied any relief, finding that the record conclusively

demonstrated proper service and actual notice. (Doc. 265).

Plaintiff also filed the present post-judgment motions. (Docs. 262, 266). In the

motions, Plaintiff renews his claim that he never received the summary-judgment motion

or Defendants’ Statement of Undisputed Material Facts, asserts that the Court “ignored”

his Motion for Status, and contends that summary judgment was erroneously granted

because genuine disputes of material fact exist and the Court improperly credited

Defendants’ version of the record. He maintains he could not properly refute Defendants’

facts because he never received the motion, and he argues that email service was

improper because he is a pro se litigant who does not electronically file.

Plaintiff also filed a Notice of Appeal (Doc. 267) and a Motion for Leave to Appeal

in Forma Pauperis (Doc. 269). Plaintiff indicates that his issues on appeal include: “(1)

Whether summary judgment was improperly granted despite genuine disputes of

material fact; (2) Whether Defendants were deliberately indifferent to serious medical

needs; and (3) Whether Plaintiff was subjected to retaliation.” (Docs. 267 and 269).

II. APPLICABLE LAW

A. Rule 59(e)

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 banc 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)).

B. Rule 60(b)

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).

III. DISCUSSION

A. Jurisdiction

As a preliminary matter, the Court must address its jurisdiction to decide the

Motion to Reconsider, given the fact that Plaintiff has also filed a Notice of Appeal.

Ordinarily, a notice of appeal “divests the district court of its control over those aspects

of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56,

58 (1982); accord May v. Sheahan, 226 F.3d 876, 879 (7th Cir. 2000). Where a party files

a timely notice of appeal and a timely Rule 59(e) motion or a Rule 60(b) motion filed no

later than twenty-eight days after the judgment is entered, however, the notice becomes

effective only after the order disposing of the Rule 59(e) or Rule 60(b) motion. Fed. R.

App. P. 4(a)(4)(B)(i); see Katerinos v. United States Dep't of Treasury, 368 F.3d 733, 737 (7th

Cir. 2004). Consequently, the Court finds that it has jurisdiction to decide the Plaintiff’s

motions to alter or amend judgment or for relief from judgment.

B. Motions for Relief From Judgment

Under Rule 59(e), relief is available only where the movant demonstrates a

manifest error of law or fact or presents newly discovered evidence that could not

reasonably have been discovered earlier. Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996);

Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). Plaintiff has shown neither.

Plaintiff’s primary contention, that he never received Defendants’ Motion for

Summary Judgment or Statement of Undisputed Material Facts, is directly contradicted

by the record. Plaintiff filed a timely response to the motion (Doc. 253), complete with

exhibits and his own statement of additional material facts, as well as a surreply (Doc.

255) that addressed arguments Defendants raised in their reply (Doc. 254). Defendants

submitted proof of proper service by first-class mail to Plaintiff’s address of record

(satisfying Fed. R. Civ. P. 5(b)(2)(C)) and by email. Plaintiff responded to the email

transmitting Defendants’ reply and furnished Defendants with a copy of his sur-reply.

This evidence, which the Court previously considered when denying relief on Plaintiff’s

Notice Regarding Failure of Service (Doc. 265), refutes any claim of lack of service. Any

objection to email service is immaterial, as mail service was independently sufficient.

Plaintiff’s assertion that the Court “ignored” his Motion for Status (Doc. 256) is

likewise without merit. The Court granted the motion the following day (Doc. 257) and

expressly advised Plaintiff that it had received the summary-judgment briefing (Docs.

249, 250, 253, 254 & 255), taken it under advisement, and that a ruling would issue. All

orders were mailed to Plaintiff’s last known address and not returned as undeliverable.

Plaintiff’s remaining arguments merely rehash the merits of the summary

judgment ruling, express disagreement with the Court’s evaluation of the evidence under

Rule 56, and contend that genuine issues of material fact exist. These contentions do not

identify any manifest error. Rather, they attempt to relitigate issues the Court already

decided after full briefing. A Rule 59(e) motion may not be used to reargue previously

rejected positions or to present arguments that could have been raised prior to judgment.

Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000); Russell v. Delco Remy Div.

of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). The Memorandum and Order

correctly applied the standards governing conclusory assertions, unqualified opinions,

and the exclusion of the late-produced personal log under Rule 37(c)(1).

Rule 60(b) provides an extraordinary remedy reserved for exceptional

circumstances. McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000). Plaintiff has

identified none. He has not demonstrated any fraud, misrepresentation, or misconduct

by the opposing party that would support relief under Rule 60(b)(3). Nor has he

identified any other extraordinary circumstances that would justify relief under the catch-

all provision of Rule 60(b)(6). Further, for the reasons detailed above, there was no

“mistake, inadvertence, surprise, or excusable neglect” under Rule 60(b)(1). Plaintiff

received proper service, actual notice, and a full and fair opportunity to respond to the

motion for summary judgment. His current filings simply reiterate arguments the Court

has already considered and rejected. Rule 60(b) is not a vehicle for relitigating the merits

or advancing arguments that should have been made before judgment. Russell, 51 F.3d at

749; Rutledge v. United States, 230 F.3d 1041, 1052 (7th Cir. 2000).

Accordingly, both post-judgment motions are denied.

C. Motion for Leave to Appeal in forma pauperis

Plaintiff was granted leave to proceed in forma pauperis in this Court (Doc. 6).

Accordingly, he may proceed IFP on appeal without further authorization if his financial

status has not changed and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1),(3);

FED. R. APP. P. 24(a)(3). Plaintiff has not provided any updated financial information, so

the Court cannot determine whether his circumstances have changed since the original

IFP determination.

Additionally, the Court cannot certify that the appeal is taken in good faith. An

appeal is in good faith only if it presents at least an arguable basis in law or fact such that

a reasonable person could suppose it has merit. Walker v. O’Brien, 216 F.3d 626, 632 (7th

Cir. 2000). Plaintiff’s Notice of Appeal raises three issues: (1) whether summary judgment

was improperly granted despite the existence of genuine disputes of material fact; (2)

whether Defendants were deliberately indifferent to Plaintiff’s serious medical needs;

and (3) whether Plaintiff was subjected to retaliation. (Doc. 267).

These issues were fully litigated and resolved against Plaintiff in the Court’s

Memorandum and Order granting summary judgment (Doc. 258). As explained therein,

Plaintiff’s response, statement of additional facts, and affidavit consisted of conclusory

assertions unsupported by admissible evidence, and the personal log he produced for the

first time in his response was properly stricken under Rule 37(c)(1) for violation of Rule

26. For the reasons set forth above, Plaintiff’s post-judgment motions identify no arguable

error in the Court’s rulings regarding service of the summary-judgment papers or the

merits analysis. The Court does not see an arguable good faith basis for appeal.

Accordingly, the Court CERTIFIES that the appeal is not taken in good faith.

Plaintiff is informed that in light of this finding, he must either pay the appellate

filing fee or file a motion to proceed IFP with the court of appeals.

IV. CONCLUSION

For the reasons set forth herein, the Motion to Alter Judgment (Doc. 262) and the

Motion to Alter or Amend Judgment (Doc. 266) are DENIED. Further, Plaintiff’s Motion

for Leave to Appeal in forma pauperis (Doc. 269) is DENIED.

SO ORDERED.

Dated: April 10, 2026 /s/ David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge