Case: 1:04-cv-02284-AA Doc #: 15 Filed: 10/31/05 1 of 4. PageID #: 66
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`Case No. 1:04-CV-02284
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`Judge Ann Aldrich
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`MEMORANDUM AND ORDER
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`))))))))))))
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`MICHAEL OKO,
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`Plaintiff,
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`v.
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`EDWARD F. LOHN, et al.,
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`Defendants.
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`Plaintiff, Michael Oko filed a Motion for Reconsideration of Court’s Opinion and
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`Plaintiff’s First Amended Complaint [Docket No. 9] on March 30, 2005. For the following reasons,
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`the Motion is denied.
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`Mr. Oko filed this in forma pauperis action on November 11, 2004 asserting that
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`Cleveland police officers used excessive force to secure his arrest and denied him appropriate
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`medical treatment. He named as defendants the officers involved in his arrest, as well as the City
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`of Cleveland and the Cleveland police chief. He claimed the City of Cleveland was included in the
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`lawsuit because it “is responsible for public safety, management of municipal policies and provides
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`funding for its police department.” (Compl. at 3.) Edward Lohn was named as a defendant because
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`he “is ultimately responsible for the operation, training, and supervision of personnel and staff in
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`this lawsuit.” (Compl. at 3.) Thereafter, the Court issued its Memorandum of Opinion and Order
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`ruling that respondeat superior is not a viable theory of liability under 42 U.S.C. § 1983 and
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`dismissing the City of Cleveland and Police Chief, Edward Lohn as defendants.
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`Mr. Oko has now filed a Motion for Reconsideration of that holding. Specifically,
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`Mr. Oko admits that his claims against the two defendants were based on a theory of respondeat
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`superior, but asserts that the Court erred in dismissing these claims on their merits without
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`permitting him the opportunity to amend his complaint. Although he states he is filing an amended
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`complaint to alter his claims against the City of Cleveland and Edward Lohn and to add a new
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`defendant, no such document was attached to the Motion or filed separately. He asks this court to
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`reconsider its dismissal of these two defendants and reinstate them to this action.
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`In the Sixth Circuit, a Motion for Reconsideration is construed as a Federal Civil
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`Rule 59(e) Motion to Alter or Amend Judgment. Moody v. Pepsi-Cola Metro. Bottling Co., 915
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`F.2d 201, 206 (6th Cir. 1990). As such, plaintiff was required to file his motion within 10 days
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`from the date of judgment he seeks to alter. FED. R. CIV. P. 59(e). The Memorandum of Opinion
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`and Order for which Mr. Oko seeks reconsideration was issued on February 23, 2005. He filed his
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`Motion on March 30, 2005, beyond the 10 day deadline from this court’s judgment. Inasmuch as
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`this court lacks jurisdiction to enlarge the time for filing a Rule 59(e) motion, see FED.R.CIV.P.
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`6(b); Denley v. Shearson American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984), plaintiff’s motion
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`to alter or amend is dismissed as untimely.
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`Where a party's Rule 59 motion is not filed within the mandatory ten day period, it
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`is appropriate for a court to consider the motion as a motion pursuant to Rule 60 for relief from
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`judgment. Feathers v. Chevron U.S.A., 141 F.3d 264, 268 (6th Cir. 1998); see, e.g., Van Skiver
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`v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). The
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`standard for granting a Rule 60 motion is significantly higher than the standard applicable to a Rule
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`59 motion. A timely Rule 59 motion may be granted “for any of the reasons for which rehearings
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`have heretofore been granted in suits in equity in the courts of the United States.” FED.R.CIV.P.
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`59(a). A Rule 60(b) motion, by contrast, may be granted only for certain specified reasons:
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`(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
`discovered evidence which by due diligence could not have been
`discovered in time to move for a new trial under Rule 59(b); (3)
`fraud (whether heretofore denominated intrinsic or extrinsic),
`misrepresentation, or other misconduct of an adverse party; (4) the
`judgment is void; (5) the judgment has been satisfied, released, or
`discharged, or a prior judgment upon which it is based has been
`reversed or otherwise vacated, or it is no longer equitable that the
`judgment should have prospective application; or (6) any other
`reason justifying relief from the operation of the judgment.
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`FED.R.CIV.P. 60(b). Because the motion does not invoke any of the first five grounds for relief
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`enumerated in the rule, plaintiff’s request may be construed under subsection (b)(6), “any other
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`reason justifying relief” from judgment. This subsection, however, is only properly invoked in
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`“unusual and extreme situations where principles of equity mandate relief.” Olle v. Henry &
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`Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990). There is nothing contained in the Motion for
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`Reconsideration which suggests that Mr. Oko is entitled to relief from judgment under this
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`provision.
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`Mr. Oko acknowledges that he did not state a claim against the City of Cleveland
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`or Cleveland Police Chief Edward Lohn, but contends the court erred by dismissing these
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`defendants without permitting him the opportunity to amend his complaint. District courts may not
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`permit a plaintiff to amend a complaint to avoid dismissal pursuant to the screening provisions of
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`28 U.S.C. § 1915(e). See Benson v. O’Brian, 179 F.3d 1014, 1015-16 (6th Cir. 1999); McGore v.
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`Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997). Moreover, Mr. Oko has presented no allegations
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`to suggest that he would have a viable claim against these defendants if they were reinstated to this
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`action. He has not filed an amended complaint and has given no indication of its proposed content.
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`There is no suggestion that Mr. Oko is entitled to relief from judgment under Rule 60(b).
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`For the foregoing reasons, the Court denies Mr. Oko’s Motion for Reconsideration
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`of Court’s Opinion.
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`IT IS SO ORDERED.
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`Dated: October 31, 2005
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` s/Ann Aldrich
`ANN ALDRICH
`UNITED STATES DISTRICT JUDGE
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