Tatum v. Foster

Filing 54

ORDER signed by Judge Pamela Pepper on 1/23/2017 DENYING 51 Petitioner's second motion for reconsideration and ORDERING the Clerk to substitute name of respondent. (cc: all counsel; by US Mail to petitioner) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ROBERT L. TATUM,

Case No. 13-cv-1348-pp

Petitioner,
v.
BRIAN FOSTER,
Respondent.
______________________________________________________________________________
ORDER DENYING PETITIONER’S SECOND MOTION FOR
RECONSIDERATION (DKT. NO. 51), AND ORDERING CLERK TO
SUBSTITUTE NAME OF RESPONDENT
______________________________________________________________________________
At the time he filed an appeal from this court’s dismissal of his habeas
petition, the petitioner was in the Wisconsin Secure Detention Facility at
Boscobel, Wisconsin. Dkt. No. 28. On February 23, 2016, the court received a
motion from the warden of the WSDF, Gary Boughton, asking permission
under Fed. R. App. P. 23(a) to transfer the petitioner to the Waupun
Correctional Institution in Waupun, Wisconsin. Dkt. No. 41. The court granted
that motion via text-only order on March 2, 2016. About six months later,
however, the petitioner filed a declaration, stating that he believed the warden
of Waupun intended to transfer him again, and that he objected to that
transfer. Dkt. no. 42. He filed a motion, asking the court to impose sanctions
on the Waupun staff for what he anticipated would be a transfer in violation of
Rule 23, and for allegedly obstructing his legal mail. Dkt. No. 42. The court
denied that motion. Dkt. No. 44. A short time later, the warden of Waupun did
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properly file a motion under Rule 23, asking to transfer the petitioner to Green
Bay Correctional Institution. Dkt. No. 45. That motion complied with the rule,
and the court granted it. Dkt. No. 47.
The petitioner persists in arguing that the court erred in approving his
transfers to Waupun and GBCI, and continuing to argue that the court should
have ordered an investigation into his allegations that the staff at Waupun
tampered with his mail. See dkt. no. 46 (first motion for reconsideration); dkt.
no. 51 (second motion for reconsideration).
In support of this second motion for reconsideration, the petitioner cites
18 U.S.C. §4 and Fed. R. Civ. Proc. 54(b) and 60(b). Dkt. No. 51 at 1. Section 4
of Title 18, (misprision of felony), does not provide for reconsideration of prior
court orders; it is a substantive criminal statute. Therefore, it provides no basis
for this court to reconsider its prior orders. Rule 54(b) is not an appropriate
vehicle for the petitioner’s motion to reconsider; that rule instructs courts on
how to issues judgment involving multiple claims or multiple defendants. The
only rule the petitioner cites which allows courts to reconsider orders or
decisions is under Rule 60(b).
Rule 60(b)(3) permits a court to relieve a party from an order if the order
resulted from fraud, misrepresentation, or misconduct by an opposing party.
Rule 60(b)(6) allows a party to move for reconsideration based on “any other
reason that justifies relief.” Relief under Rule 60(b), however, “is an
extraordinary remedy and is granted only in exceptional circumstances.”
Eskridge v. Cook Cnty., 577 F.3d 806, 809 (7th Cir. 2009) (quoting McCormick
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v. City of Chicago, 230 F.3d 319, 327 (7th Cir. 2000)). A motion for
reconsideration “is not an appropriate forum for rehashing previously rejected
arguments . . . .” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90
F.3d 1264, 1270 (7th Cir. 1996). The district court has discretion regarding
whether to grant a motion under Rule 60(b). Id., at 1270.
This second motion for reconsideration does not present any information
that the petitioner did not present in his original motion to reconsider (or in his
motion for sanctions). He continues to argue that the warden of Waupun had
no reason to transfer him, and that the Waupun staff interfered with his legal
mail. The court already has addressed these issues in its order denying the
motion for sanctions, dkt. no. 44, and in its order denying the petitioner’s last
motion for reconsideration, dkt. no. 48. The court will deny this second motion
for reconsideration; the court will not respond to any additional motions for
reconsideration.
The court notes that the petitioner now is housed at the Green Bay
Correctional Institution. Dkt. Nos. 52, 53. The warden of GBCI is Scott
Eckstein; the court will instruct the clerk of court to amend the caption of this
case accordingly.
In December 2016 and January 2017, the petitioner filed two notices of
change of address. Dkt. Nos. 52, 53. In the notice the clerk’s office received on
January 5, 2017, the petitioner asked for an “updated recent year copy of the
Eastern District of WI local rules in its entirety.” Dkt. No. 53. The local rules
are fifty pages long, not including the appendix, and many of the rules relate to
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federal criminal cases and other kinds of cases that are not relevant to the
petitioner’s habaeas case. Further, the petitioner’s case is on appeal to the
Seventh Circuit; it is not “pending” in the district court. The court will not send
the petitioner an entire copy of the 2010 Local Rules.
The court DENIES the petitioner’s motion for reconsideration. Dkt. No.
51.
The court ORDERS the clerk of court to amend the caption of the case,
to substitute Warden Scott Eckstein of Green Bay Correctional Institution as
the appropriate respondent.
Dated in Milwaukee, Wisconsin this 23rd day of January, 2017.

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