Gidarisingh v. Franks et al
Filing
316
ORDER Denying Plaintiff's Rule 60(b) Motion 303 and Denying Plaintiff's Motion for Reconsideration 308 . (cc: all counsel; via US Mail to Plaintiff) ((cef), C. N. Clevert, Jr.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SONNIEL R. GIDARISINGH,
Plaintiff,
v.
Case No. 04-CV-38
GARY R. MCCAUGHTRY, MARC CLEMENT,
STEVEN SCHUELER, CAPTAIN O’DONOVAN,
CORRECTIONAL OFFICER JASON KEMPFER,
CHRIS ROELKE, WARDEN PHIL KINGSTON,
TIM DOUMA, JANEL NICKEL,
COLLEEN JAMES, LAMAR TOMAC,
CORRECTIONAL OFFICER KEVIN PITZEN,
CORRECTIONAL OFFICER JEREMIAH MILLARD,
CORRECTIONAL OFFICER TRACY KOPFHAMER,
CORRECTIONAL OFFICER RANDALL BECKER,
SGT. HART, SGT. RANDY MUELLER,
and CORRECTIONAL OFFICER PETER BUWALDA,
Defendants.
ORDER DENYING PLAINTIFF’S RULE 60(b) MOTION (DOC. #303) AND DENYING
PLAINTIFF’S MOTION FOR RECONSIDERATION (DOC. #308)
Plaintiff, Sonniel R. Gidarisingh, has filed a motion for relief from judgment
pursuant to Federal Rules of Civil Procedure 60(b)(3) and (6). After considerable delay,
the motion is fully briefed and ready for resolution. For the reasons set forth herein, the
court finds that Gidarisingh has not met the burden for relief under Rule 60.
Background
Gidarisingh is a Wisconsin state prisoner serving a life sentence. Beginning
on April 5, 2002, he provided a deposition and trial testimony in a lawsuit against the
Wisconsin Department of Corrections (DOC) and three DOC employees involving the July
1998 suicide of Wisconsin inmate Matthew Sanville.
In 2004, Gidarisingh filed this action against DOC personnel at Waupun
Correctional Institution (WCI) and Columbia Correctional Institution (CCI). He claimed that
he was placed in segregation status in retaliation for a deposition he gave in the Sanville
lawsuit. Gidarisingh also alleged several civil rights violations between 2002 and 2007
while he was held at WCI and CCI. He contended that the incidents of misconduct by
DOC personnel, who know about his participation in that case, were in retaliation for his
deposition and trial testimony in the Sanville matter. Gidarisingh also claimed that DOC
personnel conspired against him because of his participation in the Sanville litigation.
From April 28 to May 1, 2008, a trial to the court was held in this action.
Gidarisingh was represented by Foley & Lardner, LLP, which appeared pro bono at the
court’s request. The case was taken under advisement and the court entered judgment
in favor of the defendants, and issued a Decision and Order for Judgment on September
29, 2009. With regard to Gidarisingh’s retaliation claim, the court determined that he had
engaged in protected speech by providing deposition testimony and testifying in the
Sanville case. However, the court found that the evidence did not show that Gidarisingh’s
deposition and trial testimony were substantial or motivating factors in the challenged
actions of the defendants:
Notably, the plaintiff does not allege that the defendants to the
lawsuit retaliated against him. Rather, he avers that the coworkers and associates of Ivy Scapardine retaliated against
him. In addition, he has failed to establish that the defendants
in this case knew about his participation in the Sanville
litigation. Moreover, the evidence does not support a finding
that the events cited by the plaintiff would have transpired
differently absent a retaliatory motive. For example, the
evidence indicates that the plaintiff was sent to TLU on April 5,
2002, because his release from segregation to the general
population was a mistake. As noted earlier, this is supported
2
by Exhibit 1, which shows that a decision was made the
previous month that upon release from segregation the plaintiff
would go to temporary lock-up pending referral to
administrative confinement. Also, the court finds credible the
defendants’ testimony regarding the incidents claimed to be
retaliatory involved legitimate, non-retaliatory actions.
(Docket No. 219 at 6.)
The court also determined that excessive force was not used against
Gidarisingh:
The testimony and other evidence submitted at trial
leads this court to conclude that on June 18, 2003, force was
used against the plaintiff to maintain and restore discipline.
Pitzen reasonably perceived that the plaintiff was a threat
because he was on two-man escort status. According to
Pitzen, plaintiff turned his head and tensed his arms.
Moreover, Douma’s memo which was posted to the front of
plaintiff’s cell alerted plaintiff that any resistance would be
considered potentially assaultive.
Defendant Pitzen believed it was inappropriate to
temper his use of force because he thought it unlikely that
using less force would have allowed him to get the plaintiff
against the door fast enough to prevent the plaintiff from taking
any action. In addition, the evidence shows that the plaintiff
suffered minor injuries, which supports a finding that the force
used was appropriate. Further, nurse Persson believes that
the plaintiff’s injuries were not serious or life-threatening. In
the days following the incident, the plaintiff did not ask for
medical care for injuries sustained during the incident even
though he was seen by medical professionals during that time.
No bruises, knots or broken collarbone was noted on the
plaintiff’s medical chart. Finally, the strip search which
followed the June 18, 2003, scuffle was a standard procedure
used in placing plaintiff on control status, and the plaintiff
refused to comply with the search. The court finds no good
reason to conclude that the strip search was intended to
humiliate or inflict psychological pain.
(Id. at 9-10.)
3
Finally, the court concluded that Gidarisingh’s conspiracy claim failed
because of the absence of an underlying violation of his constitutional rights. The court
also determined that the evidence did not show that any of the defendants conferred in any
way regarding the treatment of Gidarisingh or that there was an understanding among two
or more defendants respecting any matter touching on his constitutional rights.
The court will now set forth an overview of this case following the September
29, 2009, entry of judgment. On October 7, 2009, Gidarisingh filed a pro se motion for
extension of time to file a motion to alter or amend judgment “by myself or appointed
attorney at Foley & Lardner LLP.” (Docket No. 221 at 1.) In his supporting declaration,
Gidarisingh averred that he intended to file a motion to amend judgment, either by his
appointed attorney or pro se, and that he did not know if his attorney would file a timely
motion to alter judgment. (Docket No. 222 ¶¶ 3, 5.) He added that he would be unable to
timely file a Rule 59(e) motion pro se because he was in segregation.
(Id. ¶ 5.)
Gidarisingh filed a pro se motion for enlargement of time to file materials supporting his
Rule 59 motion, motion for permission to supplement Rule 59 motion, and motion for
production of transcripts on October 20, 2009. (Docket No. 223.) By this motion,
Gidarisingh reiterated his request to file a motion under Rule 59, asserted that another
prisoner was assisting him in preparing such a motion, and that due to communication
impediments involving the prisoner assisting him, he needed the trial transcripts and
exhibits to file his motion. Gidarisingh filed his pro se notice of appeal and motion for leave
to proceed in forma pauperis on appeal on October 28, 2009.
4
On January 29, 2010, the court granted Gidarisingh’s motion for leave to
proceed in forma pauperis on appeal. In the same order, the court denied as moot his two
motions for extension of time to file a motion to alter or amend judgment pursuant to Rule
59(e). The court reasoned that the motions were not timely filed, that it did not have
discretion to extend the period of time for filing a motion under Rule 59(e), see Fed. R. Civ.
P. 6(b), and that Gidarisingh filed a notice of appeal rather than a motion to alter or amend
judgment.
On April 16, 2010, Gidarisingh filed a motion requesting, (1) production of his
entire trial transcripts without cost; (2) that the court allow him to file his Rule 59(e) motion
60 days after the production of his trial transcripts; and (3) that the court request his trial
attorneys to assist him in his post trial motions. (Docket No. 235.) On June 25, 2010, the
court concluded that the Federal Rules of Civil Procedure and the applicable law precluded
Gidarisingh from filing a Rule 59(e) motion to alter or amend judgment. (Docket. No. 237
at 4.) However, the court permitted him to proceed on a motion for relief from judgment
pursuant to Rule 60(b) and ordered Gidarisingh to inform the court within 30 days whether
he would file a Rule 60(b) motion. (Id. at 4, 7.) Inasmuch as Gidarisingh was proceeding
pro se, he was provided with a free copy of the trial transcripts. (Id. at 6.)
On July 13, 2010, Gidarisingh filed a motion stating that he intended to file
a Rule 60(b) motion. (Docket No. 239.) On July 20, 2010, the court granted his motion to
file a Rule 60(b) motion, denied his motion to appoint counsel, and ordered him to file his
Rule 60(b) motion within 60 days after receiving the trial transcripts. (Docket No. 246.)
In due course, Gidarisingh was given access to seven boxes of legal
materials which he received from his former attorneys. (Docket No. 256 at 1.) According
5
to DOC institutional rules, inmates were only permitted to keep in their cells legal materials
totaling no more than 20” x 20” x 20” space. Because of pending motions before this court,
Gidarisingh’s excess legal materials were placed in storage and he was provided the
opportunity to regularly exchange the materials in his cell with materials placed in storage.
(Docket No. 269 at 1.) Regardless, Gidarisingh filed a motion for injunctive relief, asking
the court to order the defendants to allow him to retain all of his legal documents in his cell
and requested an extension of time to file the Rule 60(b) motion. (Docket No. 248.)
On November 22, 2010, the court directed Gidarisingh to file his Rule 60(b)
motion on or before January 14, 2011, and that no further extensions would be granted.
(Docket No. 269 at 3.) However, shortly thereafter, defendants’ counsel advised the court
that a property room employee at Green Bay Correctional Institution (GBCI), where
Gidarisingh was confined, had inadvertently destroyed Gidarisingh’s excess legal materials
that had been placed in storage. (Docket No. 270.) Upon learning of this incident,
Assistant Attorney General John R. Sweeney immediately notified the court of the error
and arranged for Foley & Lardner to promptly reproduce and deliver copies, at GBCI’s
expense, of the seven boxes of legal materials. (Docket No. 271.)
Thereafter, the court held a hearing on Gidarisingh’s motions for contempt
and sanctions against GBCI personnel, at which Gidarisingh appeared by videoconference.
(Docket No. 295.)
With due regard for the inadvertent destruction of
Gidarisingh’s legal materials, the court granted Gidarisingh’s motion for a 45-day extension
of time to file his Rule 60(b) motion, ordering that the motion be filed by March 11, 2011.
(Docket No. 295 at 2.) Instead of a motion or a memorandum of law, Gidarisingh filed a
135-page “declaration” with this court on March 14, 2011, along with twenty-seven exhibits.
6
(Docket Nos. 303-05.) Defendants filed a motion to strike Gidarisingh’s declaration for
violation of Civil Local Rule 7. (Docket No. 306.) However, the court denied the motion
to strike, and found that Gidarisingh’s declaration serves as his Rule 60(b) motion. (Docket
No. 312.)
Gidarisingh’s Rule 60(b) Motion
Gidarisingh brings his motion pursuant to Rules 60(b)(3) and (6). First, he
contends that his court-appointed pro bono attorneys committed malpractice that
substantially prevented him from presenting an effective case at trial.
Specifically,
Gidarisingh charges that his attorneys were inexperienced, coerced him to sign a jury
waiver form, failed to subpoena several individuals, failed to object to character evidence
asserted against him, failed to cross-examine several defendants, failed to secure
corroborative and impeachment evidence that defendants knew of Gidarisingh’s
participation in the Sanville lawsuit, failed to secure the trial transcripts to prevent him from
appealing the case, and other things. (Pl.’s Mot. for Recon. at 6-34, ¶¶ 21-53.)
Next, Gidarisingh contends that defendants Millard, Pitzen, Kopfhamer,
Schueler, Kingston, Clement, Roelke, Hart, Tomac, Kempfer, Douma, Becker, Buwalda,
Nickel, and O’Donovan, as well as Nurse Paul Persson, testified falsely at trial. (Id. at 34114, ¶¶ 54-125.) Consequently, he requests that they be charged criminally. (Id. at 127,
¶ 137.)
Gidarisingh further contends that the court failed to provide findings of facts
regarding his retaliation claims against each defendant and state why it found his testimony
and the testimony of his inmate witnesses incredible contrary to Fed. R. Civ., P. 52(a). (Id.
7
at 130, ¶ 139.) Additionally, he submits that Seventh Circuit Rule 50 was violated because
the court did not consider all of the facts of his retaliation claim against each defendant so
as to enable the court of appeals to review the reasoning underlying the judgment. (Id. at
130, ¶ 140). Gidarisingh goes on to asset the following errors:
Judge Clevert relied upon the false testimony of
defendant Millard that plaintiff “refused to comply with the strip
search” and “threaten to kill the guards” to rule against plaintiff.
Judge Clevert misapplied the excessive force law and
facts of the case when Judge Clevert relied upon a memo
address[ed] to the security staff that plaintiff never received, as
all the defendants pertaining to the excessive force never
served plaintiff a copy of the memo “about facing forward”
dated 5-21-03. Judge Clevert relied upon this memo that was
posted on the outside of plaintiff[‘s] solid steel door for the
guards to read and not plaintiff, Judge Clevert[‘s] decision was
bias[ed] and an abuse of discretion, because if plaintiff is
required to face forward as according to this memo dated 5-2203, then plaintiff is not allowed to turn his head to read a memo
to his left, because plaintiff[‘s] cell door opens from right to left,
furthermore plaintiff never received this memo and Judge
Clevert went against the facts of the case of Case #04-C-38 to
rule against plaintiff.
Judge Clevert took 17 months to decide the trial of Case
#04-C-38, from May 1, 2008 to Sept. 29, 2009 is a violation of
Fed. R. Civ. P. 1 because Judge Clevert miss the facts of the
case and failed to consider all the facts of plaintiff[‘s] case and
made clear the conclusion of law and how he find the
defendants all 15 of them credible and why he didn’t find
plaintiff’s testimony and plaintiff’s witnesses credible.
Judge Clevert’s decision on plaintiff’s excessive force
claim is against federal law, because Judge Clevert failed to
understand that the evidence showed at the trial. Plaintiff was
handcuffed behind the back, bullstrapped to his cell door and
had iron leg shackles on his feet that plaintiff never verbally nor
physical[ly] threaten any staff prior, during and the end of the
physical assault, Judge Clevert’s decision that “Pitzen
reasonably perceived that plaintiff was a threat because
plaintiff was a threat because plaintiff was on a 2-man escort
8
status, according to Pitzen, plaintiff turn plaintiff head and
tensed his arm, moreover Douma’s memo which was posted
to the front of plaintiff’s cell alert plaintiff that any resistance
would be considered potentially assaultive . . .” This reasoning
is against the facts presented at the trial of Case # 04-C-38
and the excessive force law throughout the federal courts and
the cruel and unusual punishment. Plaintiff’s injuries and pain
was significant. Judge Clevert relied upon Nurse Persson[‘s]
testimony which Nurse Persson testified “he does not recall
plaintiff’s injuries, bruises, knots in head and he didn’t recall if
he examined plaintiff head, ribs area. Judge Clevert’s decision
make it OK for correctional guards to attack and beat up
shackled and fully restrain inmates who didn’t threaten prison
guards nor attempt to harm prison guard because these
inmates are on a fabricated restriction or security precaution,
and prison guards can make up delusional fear of an inmate
stating that they feel “active tension” in an inmate[‘s] arm that
is handcuffed behind their backs and made up target glance.
Plaintiff was no threat to anyone on 6-18-03. Plaintiff was
beaten up 2 days of the Sanville settlement for 1.8 million
dollars (6-16-03) and the same day of that settlement was filed
with the court (E.D. Wis.) on 6-18-03.
Judge Clevert failed to take judicial notice of the Sanville
docket and settlement and case, Judge Clevert failed to form
the causal link of the tie plaintiff got beaten up and the Sanville
settlement on 6-16-03 and 6-18-03. Judge Clevert failed to
consider that plaintiff was placed on this 2-man escort memo
or restriction on May 21, 2003 due to defendant Tomac set
plaintiff up and told plaintiff to hit the trap door open, which
plaintiff did then plaintiff was set up on the defendant Tomac
battery conduct report dated 5-21-03.
Plaintiff[‘s] retaliation, excessive force, and conspiracy
claims including the humiliating strip search claims has merit.
Judge Clevert[‘s] decision was bias[ed], where Judge Clevert
abused his discretion throughout the decision plaintiff[‘s] trial,
and violated Rule 52(a), has allowed the plaintiff[‘s] appointed
attorneys to sabotage plaintiff’s trial and has knowingly allowed
the perjured testimony of the defendants in the trial of Case #
04-C-38.
Judge Clevert allowed the defendants’ attorneys to
sabotage plaintiff’s attempt to file his Rule 60(b) motion by
having Green Bay Correctional Institution staff to confiscate
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plaintiff’s legal documents of Case # 04-C-38 including
plaintiff’s incomplete Rule 60(b) motion and evidence of Case
# 04-C-38, then Judge Clevert allowed the defendants’
Attorney John Sweeney to destroy all of plaintiff’s legal
documents of Case # 04-C-38. When plaintiff filed a
TRO/preliminary injunction motion to Judge Clevert pursuant
to Fed. R. Civ. P. 65, Judge Clevert took 3 months to decide
plaintiff’s TRO/preliminary injunction motion and allowed
defendants’ attorney John Sweeney and GBCI prison officials
to intentionally destroy plaintiff’s legal documents of Case #
04-C-38 and lock plaintiff up in segregation to prevent plaintiff
from litigating his Rule 60(b) motion. Judge Clevert denied
plaintiff’s motion to supplement the trial record or for
evidentiary hearing on plaintiff’s Rule 60(b) motion. Judge
Clevert denied plaintiff’s motion for appointment of counsel to
file plaintiff’s Rule 60(b) motion that had merit. When plaintiff
had appointment of counsel at the trial of Case #04-C-38 that
abandoned plaintiff’s post-trial motions, Judge Clevert allowed
the defendants’ attorney John Sweeney, and GBCI officials to
confiscate plaintiff’s segregation pen insert on January 31,
2011 and significantly impede plaintiff from properly litigating
his Rule 60(b) motion as best as plaintiff can, this is the 3rd
time defendants’ Attorney John Sweeney and GBCI officials
attempt to sabotage plaintiff’s deadlines. Plaintiff requested an
extension and Judge Clevert denied plaintiff’s motion outright
on 3-4-11 that plaintiff received on 3-8-11. Plaintiff objected to
Judge Clevert’s misconduct and John Sweeney causing
plaintiff to no be able to finish Rule 60(b) motion to meet the 311-11 deadline.
(Id. at 131-135.)
Discussion
Federal Rule of Civil Procedure 60(b) enables a court to grant relief from a
judgment under the particular circumstances listed in the rule. Russell v. Delco Remy Div.
of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). Those are:
(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
10
or extrinsic), misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has been
satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason
that justifies relief.
Fed. R. Civ. P. 60(b).
Relief under Rule 60(b) is an extraordinary remedy granted 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)). In
assessing whether relief is appropriate, the court must balance the competing policies of
determining cases on their true merits against the desire to achieve finality in litigation.
Wright, Miller & Kane, Federal Practice and Procedure § 2857 (2010). Relief under Rule
60(b) is “essentially equitable in nature and is to be administered upon equitable
principles.” C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1208
(7th Cir. 1984) (citation omitted). Accordingly, a court has wide discretion in determining
whether a case should be reinstated under Rule 60(b). McCormick v. City of Chicago, 230
F.3d 319, 327 (7th Cir. 2000) (court’s decision not to reinstate a case under Rule 60(b) is
“discretion piled on discretion”) (quoting Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th
Cir. 1986)).
All motions under Rule 60(b) must be brought within a “reasonable time.”
Fed. R. Civ. P. 60(c). However, a motion brought under Rule 60(b)(1), (2), and (3) must
be filed no later than one year after the disputed order was entered. Id. This time limit is
jurisdictional; the district court may not extend the time to file a motion under Rule 60(b)(1),
(2), or (3) beyond one year, even if the delay in filing was reasonable. Brandon v. Chicago
11
Bd. of Educ., 143 F.3d 293, 296 (7th Cir. 1998) (affirming denial of relief under Rule
60(b)(1) where defendant filed a motion one year and three days after judgment was
entered against him); United States v. Deutsch, 981 F.2d 299, 302 (7th Cir. 1992).
If a motion can be brought under Rule 60(b)(1), (2), or (3), a party may not
use the “catchall” provision of Rule 60(b)(6) to avoid the one-year time limitation. Pioneer
Inv. Servs. Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 393 (1993) (provisions
for relief under Rule 60(b) are “mutually exclusive”); Lowe v. McGraw-Hill Companies, Inc.,
361 F.3d 335, 342 (7th Cir. 2004) (a party bringing a motion under Rule 60(b)(6) “mustn’t
be allowed to override the one-year limitation in Rules 60(b)(1), (2), and (3)”). Therefore,
a court must first determine whether any of the alleged grounds fit within subsections (1),
(2), or (3), before analyzing any remaining grounds under subsection (6). Brandon, 143
F.3d at 295-96.
As indicated, Gidarisingh brings his motion under Rules 60(b)(3) and (6).
However, he filed the motion on March 14, 2011, more than one year after judgment was
entered on September 29, 2009. The one-year time limit applies to his subsection (3)
claim and the court does not have discretion to consider the motion under Rule 60(b)(3).
Therefore, the court will focus on Gidarisingh’s claim pursuant to Rule 60(b)(6).
Under the “catchall” provision of Rule 60, a district court may reopen a
judgment for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). In accordance
with subsection (6), the court may set aside a judgment, without limitation of time, when
the circumstances of its invocation are “extraordinary.” Lowe, 361 F.3d at 342 (citing
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988); Klapprott v.
12
United States, 335 U.S. 601, 613 (1949) (plurality opinion)). In the typical “extraordinary”
case, there is “no way the party seeking to set aside the judgment could have discovered
the ground for doing so within a year of its entry.” Id. (citing Pioneer, 507 U.S. at 393).
Accordingly, relief is available under Rule 60(b)(6) only in “exceptional circumstances.”
Helm v. Resolution Trust Corp., 84 F.3d 874, 877 (7th Cir. 1996) (citing Williams v.
Hatcher, 890 F.2d 993, 995 (7th Cir. 1989)).
As an initial matter, the court will address the issue of whether Gidarisingh
had time to file his Rule 60(b) motion within one year. It appears that several factors
impact the approximate one and one half year delay in filing this motion: the question of
whether Gidarisingh would file the motion at all, after filing his notice of appeal; the
determination of whether Gidarisingh would file the motion pro se; the need to obtain the
trial transcripts, after the court ordered they be provided at no charge; the inadvertent
destruction - and subsequent replacement - of seven boxes of legal materials; and,
regrettably, court delay. These factors lead the court to conclude that, in addressing
Gidarisingh’s motion, it should at least look to the Rule 60(b)(1)1 and (3) standards, under
the guise of Rule 60(b)(6). See Lowe, 361 F.3d at 342 (“[T]he purpose of a catch-all
provision, as the term implies, is to avoid tying one’s hands in advance, which a rule would
do and only a loose standard would securely avoid doing.”). Regardless, these delays did
not prejudice Gidarisingh because he is not be entitled to relief under Rules 60(b)(1) or (3).
1
Although Gidarisingh brought his m otion under Rules 60(b)(3) and (6), his argum ents as to the
alleged m alpractice of his court-appointed attorneys fall under Rule 60(b)(1), in addition to potentially
subsection (6). The court looks to the substance of the m otion rather than the form . See United States v.
Antonelli, 371 F.3d 360, 361 (7th Cir. 2004).
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1. Attorney Malpractice
Excusable attorney negligence may justify relief from judgment pursuant to
Rule 60(b)(1). See Helm, 84 F.3d at 878; see also Robb v. Norfolk & Western Ry. Co., 122
F.3d 354, 357 (7th Cir. 1997).
However, under Rule 60(b)(1), general attorney
inattentiveness to litigation is not excusable, no matter what the resulting consequences
the attorney’s somnolent behavior may have on a litigant and regardless of the attorney's
degree of culpability. Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004); see also
McCormick, 230 F.3d at 327 (“neither ignorance nor carelessness on the part of the litigant
or his attorney provide grounds for relief under Rule 60(b)(1)”); United States v. 8136 S.
Dobson St., Chicago, Ill., 125 F.3d 1076, 1084 (7th Cir. 1997) (“a client is bound by his
chosen agent’s deeds, whether it be negligence, gross negligence, or even willful
conduct”); but see Robb, 122 F.3d at 361 (vacating a Rule 60(b)(1) denial because the
district court believed it had no discretion to evaluate whether attorney negligence might
be deemed excusable neglect). The burden to prove that the neglect was excusable is
upon the party seeking relief from judgment. Helm, 84 F.3d at 878 (citation omitted).
Inexcusable attorney negligence, on the other hand, does not constitute
proper grounds for relief under Rule 60(b)(1). Id. Nor is it available under Rule 60(b)(6),
because inexcusable attorney negligence is not an exceptional circumstance justifying
relief under subsection (6). Bakery Machinery & Fabrication, Inc. v. Traditional Baking,
Inc., 570 F.3d 845, 848 (7th Cir. 2009) (“lawyer who inexcusably neglects his client’s
obligations does not present exceptional circumstances”) (citing Williams, 890 F.2d at 996).
Deception of a client becomes the liability of the client’s
attorney and not the client’s opponent. See Tolliver, 786 F.2d
14
at 319 (“Holding the client responsible for the lawyer’s deeds
ensures that both clients and lawyers take care to comply. If
the lawyer’s neglect protected the client from ill consequences,
neglect would become all too common.”). Since clients must
be held accountable for their attorney’s actions, it does not
matter where the actions fall between “mere negligence” and
“gross misconduct.” See 7108 West Grand Avenue, 15 F.3d
at 635. “Malpractice, gross or otherwise, may be a good
reason to recover from the lawyer but does not justify
prolonging litigation against the original adversary.” Id. at 633.
See United States v. Di Mucci, 879 F.2d 1488, 1496 (7th Cir.
1989) (“It seems clear to us that the law in this circuit is that an
attorney’s conduct must be imputed to his client in any
context.”) (emphasis in original).
Bakery Machinery, 570 F.3d at 848-49. Thus, Rule 60(b)(6) is unavailable when attorney
negligence or other attorney misconduct is at issue. Easley v. Kirmsee, 382 F.3d 693, 699
n.5 (7th Cir. 2004) (missed deadline); Pantoja v. Texas Gas & Transmission Corp., 890
F.2d 955, 960 (7th Cir. 1989) (conflict of interest).
In this case, Gidarisingh has many complaints about his attorneys. Although
he mentions “inexperience” as one problem, most of his complaints to his counsel’s alleged
intentional interference, even sabotage, and deliberate mismanagement of his case.
(Later, Gidarisingh faults the court for failing to require his trial attorneys to assist him in
filing his Rule 60(b) motion.)
These contentions do not fall under the category of
“excusable neglect” where relief may be available under subsection (b)(1), but would be
designated “inexcusable neglect.” However, inexcusable neglect does not qualify as an
exceptional circumstance under subsection (b)(6). Accordingly, Gidarisingh is not entitled
to relief under Rule 60(b) based on alleged attorney malpractice.2
2
As indicated, Foley & Lardner represented Gidarisingh at the request of the court. From its
perspective, the court does not share Gidarisingh’s opinion as to the quality of their representation.
15
2. Fraud
To obtain relief under Rule 60(b)(3) based on fraud, misrepresentation, or
misconduct, a movant must prove that: “(1) the party maintained a meritorious claim at trial;
and (2) because of the fraud, misrepresentation or misconduct of the adverse party; (3) the
party was prevented from fully and fairly presenting its case at trial.” Lonsdorf v. Seefeldt,
47 F.3d 893, 897 (7th Cir. 1995) (citation omitted). The requirements apply to intentional
and unintentional misrepresentations. Id. However, the test does not require the court to
determine whether the alleged misrepresentation altered the result of the case. Id. This
is because Rule 60(b)(3) protects the fairness of the proceedings, but not necessarily the
correctness of the verdict. Id. The moving party must prove it is entitled to a new trial by
clear and convincing evidence. Id. Further, a court must weigh the finality of judgment
against fundamental fairness in evaluating these requirements. Id.
In addition, acts of fraud on the court can sometimes constitute extraordinary
circumstances meriting relief under Rule 60(b)(6). Latshaw v. Trainer Wortham & Co., Inc.,
452 F.3d 1097, 1104 (9th Cir. 2006) (citation omitted).
Such fraud on the court
“embrace[s] only that species of fraud which does or attempts to, defile the court itself, or
is a fraud perpetrated by officers of the court so that the judicial machinery can not perform
in the usual manner its impartial task of adjudging cases that are presented for
adjudication.” Id. (quoting Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989)).
Gidarisingh asserts that various defendants testified falsely at trial and that
the court relied on their perjured testimony in ruling for defendants. For example, he
submits that defendant Millard committed perjury because he testified that he heard
16
Gidarisingh state to an officer, after being ordered to face forward, “I can face any way I
want, man.” (Tr. Trans. vol, 4, 386, April 29, 2008.) In a report regarding the June 18,
2003 incident, Millard stated that he heard Gidarisingh say, “Fuck you I don’t have to do
that.” (Pl.’s Mot. for Recon. at 43, ¶ 63.) This alleged inconsistency, according to
Gidarisingh, proves that defendant Millard perjured himself at trial. However, there is no
evidence to establish that Millard was referring to the same statement by Gidarisingh.
Gidarisingh contends that defendant Pitzen committed fraud when he
testified at trial that he “directed [plaintiff] to the wall.” (Trial Tr. vol. 2, 197, April 28, 2008.)
According to Gidarisingh, this statement is inconsistent with the incident report which
states, “Officer Pitzen said that moment he felt inmate Gidarisingh tense up, he placed a
forearm into the middle of inmate Gidarisingh’s back and push[ed] him into the wall.” (Pl.’s
Mot. for Recon. at 47, ¶ 67.) However, while the statement from the incident report
provides more detail, these statements are not inconsistent.
Another example of alleged fraud at trial is defendant Kopfhamer’s testimony
that when he arrived on the scene of the June 18, 2003 incident, Gidarisingh was “bent
over almost to his knees.” (Tr. Trans. vol. 4, 424, April 29, 2008.) Next, Kopfhamer
testified that Gidarisingh was not flat on the ground and that he “reached in to grab the leg
irons and pull him so he’s laying flat out or kind of canted because of the bull strap.” (Id.)
Gidarisingh contends that the incident report indicates that, “Officer Kopfhamer said that
he pulled inmate Gidarisingh’s legs to pull his entire body away from the wall and then
turned him on his belly.” (Pl.’s Mot. for Recon. at 53, ¶ 72.) However, the court finds these
statements to be consistent, and insufficient to demonstrate that Officer Kopfhamer gave
perjured testimony.
17
Gidarisingh contends that defendant Schueler also committed perjury when
he testified at trial that Gidarisingh was referred to administrative confinement due to his
disciplinary history, which included battery and possession of weapons. (Tr. Trans. vol. 4,
442, April 29, 2008.) Although Gidarisingh acknowledges that he was found guilty of the
battery as testified by Schueler, he maintains that he was set up, and he did not commit
battery as charged. (Pl.’s Mot. for Recon. at 56, ¶ 76.) However, Gidarisingh’s insistence
that he was not guilty of these charges does not prove that Schueler committed perjury
when he relied on the charges in recommending that Gidarisingh be placed in
administrative confinement.
Gidarisingh submits that multiple defendants committed perjury when they
testified to lacking information regarding his involvement in the Sanville case, and that the
court failed to acknowledge that perjury. He contends that the court should have taken
judicial notice of the dates of the Sanville settlement as well as the excessive force incident
and inferred that the incident was retaliatory. Gidarisingh further contends that the court
should have concluded that defendants were aware of his involvement in the Sanville case
because of their positions within the institution. Regardless, based on the evidence
presented at trial, the court determined that Gidarisingh failed to establish the defendants
knew about his participation in the Sanville litigation. Even so, Gidarisingh’s offering in
support of the present motion failed to clearly establish that the acceptance of defendants’
testimony on this issue was judicial error.
The court will not discuss each of Gidarisingh’s fraud allegations. However,
they are all similar in that Gidarisingh suggests inconsistencies in trial testimony where
none exist. He contends that the defendants must have given perjured testimony simply
18
because he disagreed with it. Therefore, he has not presented clear and convincing
evidence that any of the defendants perjured their testimony or committed fraud so as to
entitle him to relief under Rules 60(b)(3) or (6).
3. Trial Order
Gidarisingh contends that the court failed to set forth its finding of facts
specifying why the defendants were credible and why he and his inmate witnesses were
not credible. However, the court’s September 29, 2009, Decision and Order for Judgment
constitutes its findings of facts and conclusions of law pursuant to Rule 52(a).
Gidarisingh does not cite to any law in support of his argument that the court
was required to lay out specific facts as to credibility or incredibility of each witness.
Moreover, the law of this circuit is to the contrary. See Cartwright v. American Sav. & Loan
Ass’n, 880 F.2d 912, 921 (7th Cir. 1989) (“We are not persuaded that [Seventh Circuit
precedent] requires a specific finding of credibility.”); Bechold v. IGW Systems, Inc., 817
F.2d 1282, 1286, n.2 (7th Cir. 1987) (“Where it is clear that the district court made a
credibility determination in arriving at its findings of fact, we have treated such findings as
tantamount to credibility determinations. We will not require a specific incantation when
the basis of a finding is otherwise clear.”).
In this case, the court found specifically that defendants were credible
witnesses, and that they adequately presented legitimate, nonretaliatory reasons for their
actions. Moreover, Gidarisingh has not presented clear and convincing evidence to the
contrary nor has he established that defendants or the court committed acts that justify
granting the extraordinary relief available under Rule 60(b).
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ADDITIONAL MATTER
Lastly, Gidarisingh seeks reconsideration of the court’s March 18, 2011, order
denying his request to receive a copy of his Rule 60(b) motion and exhibits so that he can
serve them on defendants. The court denied the request because the defendants are able
to access the documents by way of the court’s electronic filing system, and that duplication
and service of the documents would delay defendants’ response. In his motion for
reconsideration, Gidarisingh asserts that he now needs these documents to enable him
to proceed with his appeal and that he has money in his release account to pay for copies.
If that is so, these documents total 616 pages and he must prepay $61.67 to the clerk of
court to obtain them. Therefore,
IT IS ORDERED that plaintiff’s motion for relief pursuant to Rule 60(b)
(Docket #303) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for reconsideration (Docket
#308) is DENIED.
Dated at Milwaukee, Wisconsin, this 3rd day of June, 2011.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
Chief U.S. District Judge
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