Opinion
2:12-CV-46-JMS-WGH
05-11-2012
ERIC SMITH, Petitioner, v. SUPERINTENDENT BROWN, Respondent.
Order Discussing Petitioner's Motion to Re-open Case
This action in which Eric Smith sought a writ of habeas corpus was dismissed without prejudice in a Judgment entered on the clerk's docket on March 5, 2012.
Smith has filed a motion to re-open case, which because of its timing relative to the entry of final judgment on the clerk's docket, must be treated as a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992) ("substantive motions to alter or amend a judgment served more than ten days after the entry of judgment are to be evaluated under Rule 60(b).").
The current version of Rule 59 of the Federal Rules of Civil Procedure permits a Rule 59(e) motion to be filed within 28 days after the entry of judgment. This change is of no consequence here, where Smith's post judgment motion was filed more than 28 days after the entry of judgment.
Smith's post-judgment motion [8] is denied for these reasons: It seeks relief premised on an asserted legal error, which is not a valid basis upon which relief can be granted under rule 60(b). See Marques v. FRB, 286 F.3d 1014, 1018-19 (7th Cir. 2002) ("A legal error is not one of the specified grounds for [a 60(b) motion]. In fact, it is a forbidden ground."). Second, this action was dismissed without prejudice. "[A]fter a dismissal without prejudice, the plaintiff can resurrect his lawsuit only by filing a new complaint." U.S. v. Ligas, 549 F.3d 497, 503 (7th Cir. 2008).
IT IS SO ORDERED.
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Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution:
Eric D. Smith
DOC #112675
Wabash Valley Correctional Facility - Inmate Mail/Parcels
6908 S. Old U.S. Highway 41
P.O. Box 1111
Carlisle, IN 47838