Davis v. Walker et al

Filing 75

ORDER signed by Judge Pamela Pepper on 11/22/2017 DENYING 69 plaintiff's motion for relief from final judgment. (cc: all counsel, via mail to Allen Tony Davis at Green Bay Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ALLEN TONY DAVIS,
Plaintiff,
v.

Case No. 14-cv-1413-pp

JAMES GREER,
Defendant.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR
RELIEF FROM FINAL JUDGMENT (DKT. NO. 69)
______________________________________________________________________________
On December 30, 2016, the court granted the defendant’s motion for
summary judgment, dkt. no. 51, and the court entered judgment on January
3, 2017, dkt. no. 52. Almost three months later, the plaintiff filed a motion
asking the court for an order altering or amending the judgment. Dkt. No. 59.
The court construed this motion as a motion for relief from judgment under
Fed. R. Civ. Pro. 60(b), and denied it on May 22, 2017, dkt. no. 68.
Nearly four months later, the plaintiff filed another motion seeking relief
from judgment. Dkt. No. 69. The plaintiff acknowledges that Rule 60(b) relief is
an extraordinary remedy and that courts grant it only in exceptional
circumstances. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.
2006) (quoting Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir.
2005)). Relying on Rule 60(b)(3), however, the plaintiff argues that the
defendant (and others making statements in support of the defendant) made

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misrepresentations to the court that justify this extraordinary remedy. The
court disagrees.
A party asking for relief under Rule 60(b)(3) “must show that he had a
meritorious claim that he could not fully and fairly present . . . due to his
opponent’s fraud.” Venson v. Altamirano, 749 F.3d 641, 652 (7th Cir. 2014).
Here, the plaintiff identifies a number of allegedly false statements in
declarations that the defendant submitted in support of his motion for
summary judgment. For example, the plaintiff argues that Holly Gunderson
and the defendant stated that the “new” mattresses were of better construction
than the older pink mattresses, in support of their arguments that inmates no
longer required double mattresses. Dkt. No. 69 at 5-7. The plaintiff asserts that
this statement (and others like it) were misleading, because the plaintiff already
had one of the “new” mattresses when his doctor ordered that he be allowed to
use a double mattress indefinitely. Id. at 10-11.
Whether the plaintiff’s assertions are true, he had the information at the
time he responded to the defendant’s motion. He could have brought up all of
this information at the time he filed his response to the motion for summary
judgment, but he didn’t. Rule 60(b)’s extraordinary remedy is not available to
parties who want to make additional arguments that they could have made

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earlier, but didn’t.
The court DENIES the plaintiff’s motion for relief from final judgment.
Dkt. No. 69.
Dated in Milwaukee, Wisconsin this 22nd day of November, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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