Darwin Schmidt v. Michelle Eggers

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 10, 2005*
Decided November 14, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1203
DARWIN SCHMIDT,
Plaintiff-Appellant,
v.
MICHELLE EGGERS,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of Wisconsin
No. 03-C-482-S
John C. Shabaz,
Judge.
O R D E R
After a Wisconsin court revoked his parole, Darwin Schmidt sued his parole
officer under 42 U.S.C. § 1983, essentially claiming that she engineered the
revocation to satisfy a personal vendetta. Schmidt lost at summary judgment, and
after two timely but unsuccessful motions for reconsideration, he appealed to this
court in January 2004. We dismissed that appeal after Schmidt failed to pay the
required fees. In January 2005, nearly a year after our dismissal, Schmidt returned
to the district court and filed a third “Motion for Reconsideration.” In that motion—
which because of its timing was actually a motion to vacate the judgment under
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1203 Page 2
Fed. R. Civ. P. 60(b), see Talano v. Northwestern Med. Faculty Found., Inc., 273
F.3d 757, 762 (7th Cir. 2001)—Schmidt did nothing more than challenge the grant
of summary judgment. The district court denied the motion, and Schmidt now
appeals.
The time to appeal the adverse ruling on summary judgment long ago
expired, see Fed. R. App. P. 4(a)(1)(A), so the only question before us is whether the
district court abused its discretion in denying Schmidt’s most recent “Motion for
Reconsideration.” In that motion Schmidt attacks only the merits of the order
granting summary judgment in favor of his parole officer, but that legal question
should have been raised in the dismissed appeal and is not a proper ground for
relief under Rule 60(b). See Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002).
What Schmidt actually seeks is another chance at appeal, and we have said before
that a motion under Rule 60(b) is not a substitute for a timely appeal. See Bell v.
Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); Neuberg v. Michael Reese
Hosp. Found., 123 F.3d 951, 955 (7th Cir. 1997); Donald v. Cook County Sheriff’s
Dep’t, 95 F.3d 548, 554 (7th Cir. 1996).
AFFIRMED.

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