McDaniel v. Meisner et al

Filing 100

ORDER signed by Judge Pamela Pepper on 8/29/2018. 96 Plaintiff's motion to vacate voluntary dismissal and 97 plaintiff's motion to include new evidence and appoint counsel DENIED for lack of jurisdiction. (cc: all counsel, via mail to Carl McDaniel at Columbia Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CARL JOSEPH MCDANIEL,
Plaintiff,
v.

Case No. 14-cv-53-pp

MICHAEL MEISNER, et al.,
Defendants.
______________________________________________________________________________
ORDER DIMSISSING PLAINTIFF’S MOTIONS TO VACATE VOLUNTARY
DISMISSAL (DKT. NO. 96) AND TO INCLUDE NEW EVIDENCE AND
APPOINT COUNSEL (DKT. NO. 97) FOR LACK OF JURISDICTION
______________________________________________________________________________
This case has been closed for some twenty-two months. On October 28,
2016, the parties filed a stipulation of dismissal, agreeing that the court should
dismiss the case on its merits, with prejudice. Dkt. No. 92. The plaintiff, his
attorney and the defendants’ attorney signed the stipulation. Id. The
stipulation did not say why the parties agreed to dismiss the case. It does not
reference a settlement agreement, nor did it provide for the court to reserve
jurisdiction to enforce a settlement agreement. Based on the stipulation, the
court dismissed and closed the case on October 31, 2016.
Nearly eight months later, on June 15, 2017, the clerk’s office received a
letter from the plaintiff, asking the clerk to provide him with a copy of the
stipulation. Dkt. No. 95. The plaintiff explained that he was considering filing a
motion to reopen the case due to “extraordinary circumstances.” Id. He also
explained that he had been unable to contact the lawyer the court had

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recruited and who had been representing him when he signed the stipulation.
Id.
On January 12, 2018, the court received from the plaintiff a motion to
vacate his voluntary dismissal. Dkt. No. 96. The plaintiff argues that the
defendants “materially breach[ed] the terms and condition(s) of the settlement
agreement,” that his “cognitive dysfunction” prevented him from understanding
the implications of settling with the defendants, that his lawyer provided
“ineffective assistance of counsel,” and that the defendants continue to retaliate
against him. Id. A couple of weeks later, the clerk’s office received from the
plaintiff a motion to include new evidence, arguing that he has received three
new conduct reports, punishing him for seeking health care. Dkt. No. 97.
A bit of history is helpful in considering the plaintiff’s motions. When the
parties filed their stipulation of dismissal, the plaintiff had two cases pending
in the Eastern District of Wisconsin: McDaniel v. Meisner, et al., 2012-cv-1178NJ and McDaniel v. Meisner, et al., 2014-cv-53-PP (this case). On May 13,
2014—four months after the plaintiff filed his complaint in the 2014 case
before this court, but a year and a half after he filed the 2012 case—Judge
Joseph granted the defendants’ motion for summary judgment, and dismissed
the 2012 case. McDaniel v. Meisner, et al., 2012-cv-1178-NJ at Dkt. No. 68.
The plaintiff appealed that decision, id. at dkt. no. 74, and on June 24, 2015,
the Seventh Circuit Court of Appeals vacated the order of dismissal and
remanded the case to Judge Joseph for further proceedings, id. at dkt. no. 97.
On September 2, 2015, Judge Joseph granted the plaintiff’s motion to
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appoint an attorney to represent him. Id. at Dkt. No. 101. Attorney Joseph
Cincotta appeared for the plaintiff in the 2012 case, and Judge Joseph set new
deadlines for the parties to amend pleadings and conduct expert witness
discovery. See id. at Dkt. No. 105. Attorney Cincotta filed an amended
complaint, id. at dkt. no. 110; the defendants answered, id. at dkt. no. 111,
and then the plaintiff began to file various documents indicating that he was
not pleased with his counsel, see, e.g., id. at dkt. nos. 112, 117. On April 21,
2016, Judge Joseph received a motion from the plaintiff, asking her to remove
Attorney Cincotta as his lawyer. Id. at dkt. no. 125. Eleven days later, however,
the judge received from the plaintiff a motion to strike the motion to remove his
lawyer. Id. at dkt. no. 126.
On May 10, 2016, Attorney Cincotta filed a motion, asking that the court
refer both the 2012 case before Judge Joseph and this case (the 2014 case
before Judge Pepper) to a magistrate judge for mediation. McDaniel v. Meisner,
et al., 2012-cv-1178-NJ at dkt. no. 128; McDaniel v. Meisner, 2014-cv-53-PP at
dkt. no. 81. Both judges agreed, and both judges referred their cases to
Magistrate Judge Aaron E. Goodstein for mediation. Judge Goodstein held the
first mediation session on August 3, 2016, 2014-cv-53-PP at dkt. no. 84; he
held another session on August 18, 2016 (the parties had been discussing a
proposal that could resolve the case, and needed more time), dkt. no. 85; and
he held a third session on August 30, 2016, dkt. no. 86. Judge Goodstein made
a final docket entry on October 11, 2016, reporting that the parties had settled
both cases and had executed the settlement documents. Dkt. No. 90. The
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parties were going to file the appropriate settlement documents. Id. On October
19, 2016, Attorney Cincotta filed the stipulation of dismissal. Dkt. No. 92. It
contained one paragraph, which stated, “IT IS HEREBY STIPULATED AND
AGREED, by and between the parties, by their respective attorneys, that this
action shall be dismissed on its merits, with prejudice, and with each party
bearing its own fees and costs, pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(ii).” Id. The document was signed by the plaintiff, by Attorney
Cincotta and by Brandon T. Flugaur of the Wisconsin Department of Justice.
Id. The parties did not file a copy of a settlement agreement, or a contract, or
any other settlement papers. The only document the court received was the
stipulation.
Fifteen months after the court closed the case, the plaintiff filed his
motion to vacate the dismissal. Dkt. No. 96. He asks for dismissal under Fed.
R. Civ. P. 60(b). Under Federal Rule of Civil Procedure 60(b)(1), a court may
grant relief from a final order resulting from “mistake, inadvertence, surprise,
or excusable neglect.”1
The plaintiff asserts that the defendants breached the terms and
conditions of the settlement agreement. Dkt. No. 96 at 1. The court does not
know whether that is so—the parties did not file a settlement agreement with
While the court does not have jurisdiction to rule on the plaintiff’s motion, it
notes that the motion was not timely filed. Rule 60(c)(1) says that if the party is
asking for relief because of mistake, inadvertence, surprise, or excusable
neglect; or because of newly-discovered evidence; or because of fraud,
misrepresentation or misconduct by the other party, the party asking for the
relief must file the motion “no more than a year after the entry of the judgment
or order or the date of the proceeding.” The plaintiff filed his motion fifteen
months after the court dismissed the case.
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the court, and the stipulation did not include any settlement terms. But even if
the defendants have breached whatever agreement the parties reached, this
court does not have jurisdiction over that issue. “[A] case that is dismissed with
prejudice is unconditional; therefore, it’s over and federal jurisdiction is
terminated.” Hill v. Baxter Healthcare Corp., 405 F.3d 572, 576 (7th Cir. 2005)
(citations omitted). The parties stipulated that the dismissal was with
prejudice. A court can “retain the power to protect and enforce” its judgments,
if the judgment “explicitly incorporates the settlement, or reserves authority to
enforce the settlement . . . .” Id. at 576 (quoting Lucille v. City of Chi., 31 F.3d
546, 548 (7th Cir. 1994)). This court’s dismissal did not incorporate the terms
of the settlement, because it did not know them, nor did it reserve authority to
enforce the settlement, because the parties did not ask it to.
This court does not have jurisdiction to decide the two motions the
plaintiff has filed.
The court DISMISSES the plaintiff's motion to vacate the voluntary
dismissal for lack of jurisdiction. Dkt. No. 96.
The court DISMISSES the plaintiff’s motion to include new evidence and
appoint counsel for lack of jurisdiction. Dkt. No. 97.
Dated in Milwaukee, Wisconsin, this 29th day of August, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Court Judge

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