Johnson v. Milwaukee County Jail et al
ORDER signed by Judge J.P. Stadtmueller on 12/8/2017: DENYING 145 Plaintiff's Motion for Reconsideration and DENYING 146 Plaintiff's Motion for Relief from Judgment. (cc: all counsel, via mail to David Lee Johnson at Waupun Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID LEE JOHNSON,
Case No. 12-CV-1148-JPS-JPS
On August 26, 2015, the Court dismissed this case with prejudice.
(Docket #137 and #138). On September 29, 2017, Plaintiff, through counsel,
filed a motion for relief from that judgment of dismissal. (Docket #139). That
motion was denied on November 8, 2017. (Docket #144). On December 6,
2017, Plaintiff, without counsel’s assistance, filed two motions. (Docket #145
and #146). There are a number of procedural defects in the motions. The
first is unsigned, meaning that the Court cannot consider it. (Docket #145 at
2); Fed. R. Civ. P. 11(a). More importantly, this Court does not permit a
party to litigate through both a lawyer and directly through their own
filings (known as hybrid representation). Plaintiff’s lawyer has not given
any indication that he has, or will, withdraw from representing Plaintiff in
this matter. Unless and until the Court is notified that his lawyer means to
withdraw, Plaintiff must litigate only through his counsel.
Even ignoring these issues, the motions must be denied on their
merits. Each motion appears to be a motion for reconsideration of an order
or judgment pursuant to Federal Rule of Civil Procedure 60(b) (“FRCP”).
That Rule offers relief from a court’s orders or judgments if a party can
show “the narrow grounds of mistake, inadvertence, surprise, excusable
neglect, newly discovered evidence, voidness, or any other reason
justifying relief from the operation of the judgment.” Tylon v. City of Chicago,
97 F. App’x 680, 681 (7th Cir. 2004) (quotation omitted). Such relief “is an
extraordinary remedy and is granted only in exceptional circumstances.”
Harrington v. City of Chicago, 443 F.3d 542, 546 (7th Cir. 2006).
Both motions are so confused and incoherent that they border on
nonsensical. As to the first, the Court is truly unable to understand what
Plaintiff wants, other than possibly reopening the case and vacating its
dismissal. (Docket #145). Plaintiff gives no cogent reason to do so, however.
Plaintiff fails to address any of the specific FRCP 60(b) grounds for relief.
Banks v. Chicago Bd. of Educ., 750 F.3d 663, 667 (7th Cir. 2014) (“The district
court does not abuse its discretion by denying a Rule 60(b) motion that is
not based on one of the specified grounds for relief.”); Monzidelis v. World's
Finest Chocolate, Inc., 92 F. App’x 349, 353 (7th Cir. 2004) (FRCP 60(b) motion
denied because the movant “failed to even argue that mistake, excusable
neglect, newly discovered evidence, fraud, or other exceptional
circumstances had undermined the legitimacy of the prior judgment.”)
(emphasis in original).
Plaintiff’s second motion is slightly more understandable. (Docket
#146). He says that exceptional circumstances warrant vacating the Court’s
dismissal, arguably invoking FRCP 60(b)(6). Id. at 2. It is nevertheless
difficult to follow his explanation of those circumstances. It seems that in
2013, while this case was still open, he gave certain documents relevant to
this case to his criminal defense lawyer, and the documents were never
returned to him. Id. at 2-3. He also references a letter from 2015 in which he
complained of obstruction by prison staff which interfered with his ability
to litigate. Id. at 3. The remainder of his statements relate to his criminal
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conviction and it is not clear why those are relevant here. Id. at 2-3. In any
event, the Court finds no exceptional circumstances which would merit
reopening this case. As stated in the Court’s November 8, 2017 order,
Plaintiff chose to proceed pro se and cannot now complain that he regrets
that decision. (Docket #144 at 3-4). Further, all of the issues cited in
Plaintiff’s motion arose years ago and should have been brought to the
Court’s attention at that time. For all of the reasons stated above, both of
Plaintiff’s motions must be denied.
IT IS ORDERED that Plaintiff’s motions for reconsideration and
relief from judgment (Docket #145 and #146) be and the same are hereby
Dated at Milwaukee, Wisconsin, this 8th day of December, 2017.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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