HOLLEMAN v. PENFOLD et al

Filing 154

ENTRY - Holleman's letter, treated as a motion to alter or amend judgment [Dkt 152 ], is DENIED. Signed by Judge Tanya Walton Pratt on 3/9/2012.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

ROBERT L. HOLLEMAN,

)
)
Plaintiff,
)
vs.
)
)
C.A. PENFOLD, EDWIN BUSS, M. HALE, )
LT. S. KING, LT. L. PETTY, LT. A. PIRTLE,)
OFFICER VAN HORN, AND
)
OFFICER HANCOCK,
)
)
Defendants.
)

No. 1:09-cv-1510-TWP-DKL

ENTRY
Plaintiff Robert Holleman’s post-judgment letter dated February 23, 2012
[Dkt 152], asserts error in the disposition of this action and was filed within 28 days
from the entry of judgment on the clerk’s docket. Accordingly, that letter is treated
as a motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. See
Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006) (explaining that
whether a motion filed within the time frame contemplated by Rule 59(e) should be
analyzed under Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure
depends on the substance of the motion, not on the timing or label affixed to it).
The purpose of a motion to alter or amend judgment under Rule 59(e) is to
have the court reconsider matters "properly encompassed in a decision on the
merits." Osterneck v. Ernst and Whinney, 489 U.S. 169, 174 (1988). Rule 59(e)

"authorizes relief when a moving party 'clearly establish[es] either a manifest error
of law or fact' or 'present[s] newly discovered evidence.'" Souter v. International
Union, 993 F.2d 595, 599 (7th Cir. 1993) (quoting Federal Deposit Ins. Corp. v.
Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)).
Holleman’s motion challenges the court’s conclusion that he failed to file a
Statement of Material Facts in Dispute as required by Local Rule 56.1. While it is
true that Holleman filed a “Designation of Material Facts in Dispute,” that
Designation is not “supported by appropriate citations to discovery responses,
depositions, affidavits, and other admissible evidence . . . .” as required by the Local
Rule. Holleman’s response to the motion for summary judgment was inadequate.
The consequence of these circumstances is that he conceded the defendants’ version
of the events. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond
by the nonmovant as mandated by the local rules results in an admission.”).
In a civil rights action, “the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must come forth with
sufficient evidence to create genuine issues of material fact to avoid summary
judgment.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010). Holleman failed to
do so by failing to present evidence to rebut the defendants’ evidence that they did
not retaliate against him. As the court explained, a mere chronology of events is
insufficient. The plaintiff “must show that he has evidence from which a reasonable
jury could find that the defendants’ knowledge of his protected activity was a
substantial or motivating factor in their decision to take an adverse action against
him.” Johnson v. Kingston, 292 F.Supp.2d 1146, 1153 (W.D.Wis. 2003). The question

of motivation, moreover, is a question of fact that turns on evidence. See Slusher v.
N.L.R.B., 432 F.3d 715, 726 (7th Cir. 2005); SCA Tissue N. Am. LLC v. N.L.R.B., 371
F.3d 983, 988-89 (7th Cir. 2004). Holleman did not offer and identify evidence from
which a reasonable trier of fact could have concluded that the defendants acted with
a retaliatory motive. A prisoner must show more than his personal belief that he is
the victim of retaliation, Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995), yet
that is the extent of Holleman’s presentation. There was no error of law or of
understanding Holleman’s claims or the evidentiary record. No new evidence has been
offered. Accordingly, Holleman’s letter, treated as a motion to alter or amend judgment [Dkt
152], is denied. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006)(AAltering or
amending a judgment under Rule 59(e) is permissible when there is newly discovered
evidence or there has been a manifest error of law or fact.@)(citing Bordelon v. Chicago Sch.
Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)).

IT IS SO ORDERED.

03/09/2012
Date: __________________
Distribution:
Robert Holleman
# 10067
Wabash Valley Correctional Facility
6908 Old U. S. Highway 41
P.O. Box 500
Carlisle, IN 47838
All Electronically Registered Counsel

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana