Smith v. McCaughtry et al

Filing 110

ORDER signed by Judge Lynn Adelman on 6/26/13 denying 107 Motion for Reconsideration. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CORNELL SMITH,
Plaintiff,
v.

Case No. 09-CV-00404

MATTHEW FRANK, GARY MCCAUGHTRY,
PHIL KINGSTON, MICHAEL THURMER,
STEVEN SCHUELER, THOMAS CORE,
MARK MELCHER, DUWAYNE LONGSETH,
PHIL KUSSMAN, SGT. GILL, BETH LIND,
M. THORP, and RICK RAEMISCH,
Defendants.

ORDER
On September 11, 2012, I granted defendants’ motion for summary judgment and
judgment was entered the same day. Plaintiff filed a motion to reconsider on May 22, 2013,
which is before me now.
Rule 60(b) of the Federal Rules of Civil Procedure enables a court to grant relief
from a judgment only under the particular circumstances listed in the rule. Russell v. Delco
Remy Div. of Gen. Motors, 51 F.3d 746, 749 (7th Cir. 1995). Those are:
(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable due 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 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).

In his motion, plaintiff argues that, if he had been represented, he would have been
able to reasonably establish that he was disabled within the definition of the Americans
with Disabilities Act of 1990 (“ADA”). Plaintiff asks me to reconsider and set aside the
judgment and ordering dismissing his complaint, assign plaintiff an advocate or legal
representative and reopen discovery to afford a more viable and honest foundation for an
evidentiary hearing and trial. Plaintiff argues that he should have been afforded the
assistance of counsel due to his mental illness. Plaintiff further acknowledges that he does
not have a constitutional right to employment at the prison, but argues that he does have
a right to treatment for his mental illness. He reiterates that defendants failed or refused
to provide him with the rights he was entitled to under the ADA, the Rehabilitative Act, and
several other federal laws. Plaintiff also submits an affidavit that provides details regarding
his mental health diagnosis of schizoaffective disorder and states his belief that he has
been poorly serve by non-lawyer legal advocates.
On June 5, 2013, the court received an affidavit with two exhibits from another
prisoner who appears to be assisting plaintiff with this case. This affidavits speaks
generally about the decline in the quality of treatment for mentally ill prisoners provided by
the Wisconsin Department of Corrections since 1974. This affidavit also suggests that
mentally ill veterans who are confined by the Wisconsin Department of Corrections are
being deprived of federally funded benefits for which they are eligible. Attached to this
affidavit are two letters from the United States Department of Justice Civil Rights division,
declining to pursue ADA claims on behalf of mentally ill prisoners in Wisconsin.
Ultimately, it is unclear what order plaintiff wants me to reconsider. He mentions a
judgment, but not the summary judgment order. He also mentions the dismissal of his
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“good faith” complaint, which may suggest he is challenging the screening order. Plaintiff’s
main focus is on the lack of counsel and how that affected his litigation of the case. Yet
plaintiff never asked for counsel while the case was pending, and I cannot reconsider an
issue that was never presented to me during the case.
THEREFORE, IT IS ORDERED that plaintiff’s motion for reconsideration (Docket
#107) is DENIED.
Dated at Milwaukee, Wisconsin, this 26th day of June 2013.
s/ Lynn Adelman
LYNN ADELMAN
District Judge

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