Durwyn Talley v. Mary Miller

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 21, 2018*
Decided November 26, 2018
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17-2789
DURWYN TALLEY, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 2:14-cv-2107
MARY MILLER, et al., Harold A. Baker,
Defendants-Appellees. Judge.
ORDER
Durwyn Talley, an Illinois inmate, appeals the district court’s denial of his fourth
and fifth postjudgment motions challenging the entry of summary judgment on his
claims of medical deliberate indifference and retaliation. We affirm.
This litigation has been protracted. After the district judge entered summary
judgment, Talley did not appeal. He instead filed a motion to amend judgment under
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-2789 Page 2
Federal Rule of Civil Procedure 59(e) that the judge denied. Talley then filed successive
motions for relief from judgment under Federal Rule of Civil Procedure 60(b) that the
judge also denied.
Talley followed with his fourth postjudgment motion, also under Rule 60(b),
asserting that the judge refused to consider newly discovered evidence. The judge
denied this motion on grounds that Talley failed to present any new arguments or
evidence.
Talley then submitted his fifth postjudgment motion, also based on Rule 60(b),
asking the judge to reconsider his denial of Talley’s prior Rule 60(b) motion and
expressing a desire to appeal. The judge denied this motion, though he agreed to
construe the submission as a notice of appeal.
On appeal Talley generally challenges the district court’s rulings, but in a prior
order we limited this appeal to a review of the denial of Talley’s fourth and fifth
postjudgment motions. The judge properly exercised his discretion by denying the
fourth motion because Talley asked the judge to reconsider evidence that he already
had considered, or Talley presented evidence that was available before the judge
entered summary judgment. See Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir.
2008). And as far as Talley challenges the denial of his fifth motion on the basis that the
summary judgment violates clearly established law, he may not use Rule 60(b) to make
arguments that could have been raised in a timely appeal. See Mendez v. Republican Bank,
725 F.3d 651, 660 (7th Cir. 2013).
We have considered Talley’s other arguments, and none has merit.
AFFIRMED