United States District Court, S.D. Indiana, New Albany Division
PAUL R. POWELL, Rev., Plaintiff,
TOWN OF GEORGETOWN, INDIANA, MIKE MILLS, JAMES E. TRIPURE, JR., PATTI DENISON, KATHY HALLER, and JERRY BROCK, Defendants.
ORDER DENYING MOTION TO SET ASIDE JUDGMENT
WALTON PRATT, UNITED STATES DISTRICT COURT.
matter is before the Court on Plaintiff Paul R. Powell's
(“Powell”) Motion to Set Aside Judgment filed
pursuant to Federal Rule of Civil Procedure 60(b) (Filing
No. 74). In connection with unpaid water bills and
turning off water service at his rental properties, Powell
asserted claims of constitutional violations against
Defendants Town of Georgetown, Indiana (“the
Town”), Mike Mills, James Tripure, Patti Denison, Kathy
Haller, and Jerry Brock (collectively,
“Defendants”). The Defendants sought and obtained
summary judgment, and the Court entered final judgment
against Powell. Following an unsuccessful appeal to the
Seventh Circuit, Powell now moves to set aside the summary
judgment ruling. For the reasons set forth below,
Powell's Motion is denied.
the relevant time period, Powell owned six rental properties
in the Town. Several water bills for his rental properties
were left unpaid by tenants. The Town threatened to not turn
water services back on to those properties until Powell paid
the delinquent balances in full. Powell filed an Amended
Complaint against the Defendants, asserting that they
violated his constitutional rights by disconnecting water
service to his rental properties that had delinquent water
bills and by refusing to restore water services until the
bills were paid in full (Filing No. 18). His claims
were for violations of his Equal Protection and Due Process
rights, as well as an unconstitutional taking. Id.
February 22, 2016, the Defendants filed a Motion for Summary
Judgment on Powell's claims (Filing No. 54). On
February 26, 2016, Powell filed a cross Motion for Partial
Summary Judgment (Filing No. 58). On May 19, 2016,
the Court entered an Order granting the Defendants'
Motion for Summary Judgment and denying Powell's cross
Motion (Filing No. 64 at 8), and entered final
judgment against Powell (Filing No. 65).
filed a motion to alter or amend the judgment, which the
Court denied. Then Powell filed his Notice of Appeal and
asked the Seventh Circuit to review the Court's May 19,
2016 Order and Judgment. On September 1, 2017, the Seventh
Circuit dismissed Powell's appeal for failure to
prosecute and issued its Mandate. The Seventh Circuit noted
that, on August 8, 2017, it had struck Powell's
noncompliant brief and had directed him to file a corrected
brief by August 15, 2017. Powell failed to comply and was
ordered on August 21, 2017, to show cause by August 28, 2017,
why the appeal should not be dismissed for failure to
prosecute. Powell again failed to respond. Thus, on September
1, 2017 the Seventh Circuit dismissed the appeal and issued
its final order with mandate. (Filing No. 73 at 3).
December 5, 2017, Powell filed a Rule 60(b) Motion to Set
Aside Judgment (Filing No. 74), asking the district
court to set aside the May 19, 2016 summary judgment Order.
Powell asserts that he recently discovered new evidence. He
asserts that, sometime in September 2017, he contacted the
Town to protest the most recent water disconnection, and the
president of the Town Council, Everett Pullem, informed him
that the Town has been advised by legal counsel that the
Town's disconnection policy is illegal and the Town would
immediately reconnect all water service to his rental
properties. Pullem also stated that, despite the illegal
nature of the disconnections, Powell is still responsible for
all unpaid water charges that his tenants incurred
(Filing No. 75 - 2).
Rule of Civil Procedure 60(b) provides:
On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct ...