Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge Virginia M. Kendall Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 12 C 2284 DATE 7/3/2012

CASE

TITLE

Jordan vs. Provena

DOCKET ENTRY TEXT

For the reasons set forth above the Court denies Jordan’s Motion for Relief from Judgment under

Federal Rule of Civil Procedure 60(b)(6) is denied. Nevertheless, Jordan is not precluded from

filing an amended Complaint properly alleging a cause of action. The Amended Complaint must

be filed by July 31, 2012. Failure to file the Amended Complaint by that date may result in

dismissal of the case or want of prosecution.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

     Melza E. Jordan Sr. moves ex parte for relief from this Court’s judgment of May 17, 2012 under

Federal Rule of Civil Procedure 60(b)(6). Jordan has incorrectly moved for relief under Rule 60(b),

but because his claims were dismissed by this Court without prejudice he may amend his

Complaint if he is willing to pay the mandated filing fees.

     On March 28, 2012, Jordan filed a pro se Complaint against the Provena St. Joseph Medical

Center; Daniel Knight, in his individual capacity as an employee of Provena; Sarah E. Quigley, in

her individual capacity as an employee of Provena; Timothy R. Hall, in his individual capacity as

an employee of Provena; and Dr. Devassi, in his individual capacity as an employee of Provena.

Jordan’s Complaint claimed violations of his Fourth and Fourteenth Amendment rights pursuant

to 42 U.S.C. § 1985, alleging that Provena and its employees entered into a conspiracy to detain him

against his will in the Psychiatric Ward of Provena. On the same day, Jordan moved to proceed in

forma pauperis without the full prepayment of filing fees. Citing assets disclosed in Jordan’s financial

affidavit, this Court denied his Motion to Proceed In Forma Pauperis. Further, this Court dismissed

Jordan’s Complaint for failure to state a claim on the grounds that Jordan’s allegations against

private individuals and institutions did not allege the necessary state action to support a claim

under 42 U.S.C. § 1985.

 Jordan now moves for relief from this Court’s judgment under Federal Rule of Civil Procedure

60(b)(6) and seeks leave to pay the necessary filing fees and to amend his Complaint to “cure the

minor pleading defects” identified by this Court. Rule 60 of the Federal Rules of Civil Procedure

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STATEMENT

prescribes the procedure to be followed to obtain relief from a final judgment. Under Rule 60(b)(6),

the catchall provision of Rule 60, this Court may reopen a final judgment for “any other reason that

justifies relief.” Fed. R. Civ. P. 60(b)(6). Relief under Rule 60(b) is an extraordinary remedy and is

only granted in very limited and exceptional circumstances. See Bakery Machinery & Fabrication, Inc.

v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009) (quoting Reinsurance Company of America,

Inc. v. Administratia Asigurarilor de Stat, 902 F.2d 1275, 1277 (7th Cir. 1990)). To obtain relief from a

final judgment under Rule 60(b) the movant must demonstrate extraordinary circumstances

justifying the reopening of a final judgment. See Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006).

The decision to grant a Rule 60(b) motion lies in the sound discretion of the district court, and its

judgment will only be disturbed if it abuses that discretion. See Martinez v. City of Chicago, 499 F.3d

721, 727 (7th Cir. 2007).

     Here, however, Jordan need not seek relief under Rule 60(b)(6). The Court’s Order of May 17,

2012 did not dismiss Jordan’s claims with prejudice. See Gladney v. Pendleton Corr. Facility, 302 F.3d

773, 775 (7th Cir. 2002) (citing Denton v. Hernandez, 504 U.S. 25 (1992)) (a dismissal under the in

forma pauperis statute is not a dismissal on the merits, but rather just an exercise of the court’s

discretion under the statute; therefore the dismissal of a complaint of a plaintiff moving to proceed

in forma pauperis does not foreclose the filing of a paid complaint making the same allegations). A

dismissal without prejudice is not a final judgment. See Dubicz v. Commonwealth Edison Co., 377 F.3d

787, 790 (7th Cir. 2004). In order to file a Rule 60(b) motion for relief from a judgment there must

first be a final judgment entered from which relief can be granted. See Martinez, 499 F.3d at 725

(“The key is whether the [Rule 60] motion followed a final judgment, not how the finality of the

judgment is demonstrated.”). Therefore, there must be an entry of a final judgment from which the

petitioner can seek relief before a plaintiff can seek leave to amend a complaint after a judgment

has been vacated under Rule 60(b). See Dubicz, 377 F.3d at 790. Here, because Jordan’s Complaint

was dismissed without prejudice there is no final judgement to seek relief from pursuant to Rule

60(b). See, e.g., Furnace v. Board of Trustees of Souther Illinois University, 218 F.3d 666, 669 n.2 (7th Cir.

2000) (a district court’s dismissal of a complaint without prejudice under the in formal pauperis

statute is not a conclusive final judgment because it leaves the plaintiff with the opportunity to

amend the complaint). Thus, Jordan is free to amend his Complaint if he is able to state a viable

cause of action. Because the Court previously determined that Jordan is not so impoverished that

he is unable to pay the mandated filing fees, if Jordan wishes to amend his Complaint he must pay

those fees before he may proceed in this Court.

    For the reasons set forth above the Court denies Jordan’s Motion for Relief from Judgment under

Federal Rule of Civil Procedure 60(b)(6) is denied. Nevertheless, Jordan is not precluded from filing

an amended Complaint properly alleging a cause of action. The Amended Complaint must be filed

by July 31, 2012. Failure to file the Amended Complaint by that date may result in dismissal of the

case or want of prosecution.

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