Wilkins v. Carmichael

Filing 10

ORDER denying (9) Motion for Reconsideration in case 1:11-cv-00540-WCG and denying (11) Motion for Reconsideration in case 1:11-cv-00579-WCG. Signed by Judge William C Griesbach on 07/05/2011. (cc: all counsel, via US mail to Herbert Wilkins) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

HERBERT G. WILKINS,
Plaintiff,
v.

Case Nos. 11-C-579 and 11-C-540

DON CARMICHAEL, et. al.,
Defendants.

ORDER DENYING MOTIONS FOR RECONSIDERATION

This Court dismissed two cases Plaintiff Herbert G. Wilkins’ filed under 42 U.S. C. § 1983
because the defendants are not state actors. Wilkins now moves for reconsideration or, alternatively,
for a certificate of appealiablity.
A motion for reconsideration serves a very limited purpose in federal civil litigation; it
should be used only “to correct manifest errors of law or fact or to present newly discovered
evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting
Keene Corp. v. Int’l Fidelity Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1976), aff’d 736 F.2d 388
(7th Cir. 1984)). “A ‘manifest error’ is not demonstrated by the disappointment of the losing party.
It is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Oto
v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp.
1063, 1069 (N.D. Ill. 1997)). Such motions are disfavored and should be “rare.” Bank of Waunakee
v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).

Here, Wilkins' claims are without merit – and reconsideration is not warranted – because
Defendants are not state actors. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(“the under-color-of-state-law element of §1983 excludes from its reach merely private conduct, no
matter how discriminatory or wrongful”) (omitting citations and quotations). As explained in this
Court’s prior order dismissing Wilkins’ complaint in Case No. 11-cv-0540, Defendants cannot be
liable under § 1983 because they were not acting under color of law when Wilkins was filmed.
(Decision and Order dated June 8, 2011 in Wilkins v. Carmichael, Case No. 11-cv-0540 (E.D. Wis.
2011).) The exact same rationale supports this Court’s dismissal of Plaintiff’s later lawsuit, Wilkins
v. Carmichael, Case No. 11-cv-0579 (E.D. Wis. 2011.)
For these reasons Wilkins’ motions for reconsideration (Dkt. 9 in Case No. 11-cv-540 and
Dkt. 11 in Case No. 11-cv-579) are denied. Wilkins’ alternative motions for a certificate of
appealability are also denied because, on June 20, 2011, I certified that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless Wilkins offers bonafide
arguments supporting his appeal. Wilkins has offered no such arguments.
SO ORDERED

5th

day of July, 2011.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

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