Stelter v. Pollard et al

Filing 65

ORDER signed by Judge Pamela Pepper on 2/17/2017 DENYING 62 Plaintiff's Motion for Reconsideration. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANTHONY B. STELTER,
Plaintiff,
v.

Case No. 14-cv-904-pp

ANTHONY MELI, RANDY VANDE SLUNT,
BELINDA SCHRUBBE, PAULA TIRUVEECULA,
JAY CERNY, and CORY SABISH,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION (DKT. NO. 62)
______________________________________________________________________________
On March 30, 2016, the court entered an order granting the defendants’
motion for summary judgment and dismissing this case. Dkt. No. 60. The court
entered judgment the same day. Dkt. No. 61. Two weeks later, the plaintiff filed
a motion for reconsideration under Federal Rule of Civil Procedure 59(e). Dkt.
No. 62.
"Rule 59(e) allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present newly discovered
evidence." Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007)). "Motions
under Rule 59(e) cannot be used to present evidence that could have been
presented before judgment was entered." Id. Whether to grant a motion to
amend judgment "is entrusted to the sound judgment of the district court." In
re Prince, 85 F.3d 314, 324 (7th Cir. 1996).
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In Burney v. Thorn Americas, Inc., the court explained what a party
needs to show to demonstrate that the court committed a manifest error of law.
A manifest error of law is . . . narrow, applying only to
egregious legal errors. Appeal, not reconsideration, is the
time to deal with the majority of legal errors; therefore, a
party may not reargue what the court has already rejected.
Similarly, summary judgment, not reconsideration, is the
time for a party’s best legal argument; therefore, a party
may not make arguments that it could have raised in the
original summary judgment motion. In other words,
manifest legal error is the narrow path between the Skylla of
arguments already raised and the Kharybdis of arguments
that could have been made. See Homer, The Odyssey, gook
12, ll. 75-140 (Robert Fitzgerald trans. 1961).
Manifest errors are errors so obvious that no additional
explanation is needed or possible. For example, if a court on
summary judgment refused to draw a reasonable inference
in favor of a nonmoving party, the court’s error would be
manifest: no explanation of the error would be necessary or
possible (besides stating that the court violated the rules of
summary judgment).
Burney v. Thorn Americas, Inc., 970 F. Supp. 668, 671 (E.D. Wis. 1997) (some
citations omitted).
In his motion, the plaintiff asks the court to reverse its summary
judgment decision with regard to defendants Cerney and Vande Slunt. Id. at 5.
In its decision, the court found that the plaintiff had conceded that he never
complained to Cerney about his concerns about the lack of proper safety
equipment. Dkt. No. 60 at 28-29. The court also rejected the plaintiff’s
argument that Cerney must have known that microcrystalline silica (“MCS”)
was present in the body shop, and that the plaintiff wasn’t wearing a protective
mask or respirator. Id. at 29. The court found that because Cerney’s job was
security, not safety, the plaintiff could only assume that Cerney knew about
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the workplace safety issues he raised. Id. at 29-30. The court found no
evidence that Cerney was deliberately indifferent, even if it were to assume that
the plaintiff had been exposed to a danger. Id. at 30-31.
With regard to Vande Slunt, the court again found no evidence that the
plaintiff ever had complained to Vande Slunt about the lack of safety
equipment, and no evidence that it was Vande Slunt’s job to provide such
equipment. Id. at 31. The court rejected the plaintiff’s claim that Vande Slunt
didn’t properly train him regarding safety precautions; that was not Vande
Slunte’s job. Id. at 31-32. The court found no evidence that Vande Slunt knew
that blade coolant could cause health risks or that the plaintiff could come into
contact with it. Id. at 32.
In asking the court to reconsider its decision, the plaintiff first indicates
that the court erred by failing to “fully apply” the plaintiff’s verified amended
complaint. Dkt. No. 62 at 1. He states that the “verified” complaint “satisfies
requirement of affidavit for summary judgment pursuant to §1746.” Id. The
court believes that the plaintiff is referring to 28 U.S.C. §1746. That statute
provides that in any situation in which a party must submit a sworn
declaration, verification or affidavit, the party may meet that requirement by
providing an unsworn declaration, verification or affidavit if it is in his writing,
dated, and subscribed to under penalty of perjury “in substantially the
following form: . . . ‘I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on (date). (Signature)’.” The
court thinks that the plaintiff is arguing that the court should have treated his
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amended complaint, dated October 24, 2014, as an unsworn oath under 28
U.S.C. §1746.
This argument does not demonstrate a manifest error of law. It is true
that the plaintiff included the §1746 language at the end of his amended
complaint. Dkt. No. 22 at 11. Even accepting all of the allegations in that
complaint (or unsworn declaration and verification) as true, the complaint does
not contain the evidence that the court found missing in its order ruling on the
summary judgment. The unsworn declaration/verification/complaint contains
allegations, but contains no evidence or proof that defendants Cerney and
Vande Slunt knew the things the plaintiff alleges that they must have known.
Next, the plaintiff argues that his unsworn
declaration/verification/complaint was served on the defendants. Dkt. No. 62
at 1. He argues that the complaint “told [the defendants] of the need for proper
safety equipment.” Id. at 1-2. This argument does not demonstrate manifest
error of law. In order to survive summary judgment, the plaintiff needed to
present the court with evidence that at the time of the events he described in the
complaint (the summer of 2013 through the summer of 2014), the defendants
knew of the danger he alleged but were deliberately indifferent to it. The
plaintiff signed his unsworn verification/complaint on October 24, 2014—some
five months or so after the events he described in the complaint. Dkt. No. 22 at
11. The unsworn verification/complaint could not have put the defendants on
notice in 2013 and the summer of 2014 of the need for safety equipment,
because the plaintiff did not create it until October 2014.
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The plaintiff states that “[d]efendants failure to provide proper safety
equipment, even after being served, may be argued to show deliberate
indifference.” Id. at 2. In support of this assertion, he cites Williams v. Griffin,
952 F.2d 820 (4th Cir. 1991). That case states that “once prison officials
become aware of a problem with prison conditions, they cannot simply ignore
the problem, but should take corrective action when warranted.” Id. at 826.
The court does not disagree with this proposition, even though it is not bound
by this decision. But the plaintiff filed his lawsuit in July 2014—two months or
so after the facts he alleged in the original complaint. He filed the amended
complaint (the unsworn verification) in October 2014—five months after the
facts he alleged in that complaint. If, as the plaintiff argues, it was his unsworn
verification—his amended complaint—that put the defendants on notice of his
alleged exposure to the dangers of MSC and coolant, they could not have been
deliberately indifferent to those dangers until after July 2014, or after October
2014. But neither complaint alleges that defendants Cerny and Vande Slunt
were deliberately indifferent after those dates; both complaints allege that the
deliberate indifference happened between the summer of 2013 and the summer
of 2014, and the plaintiff has not provided any proof that these two defendants
were aware of the alleged dangers during that time period. 
The plaintiff claims there is a genuine dispute as to a material fact
regarding when the defendants had notice of the need for proper safety
equipment. Dkt. No. 62 at 4-5. He argues that the defendants knew about the

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need for safety equipment prior to his injury and ongoing exposure, and prior
to their being served with his amended complaint. Id. at 5.
The plaintiff raised all of these arguments in his summary judgment
motion, and the court evaluated in great depth the evidence the plaintiff
presented regarding Cerney and Vande Slunt’s personal involvement. The court
determined with regard to both defendants that there was no evidence of
deliberate indifference. Dkt. No. 60 at 28-34. Because a party cannot use a
Rule 59(e) motion to reargue points the court already has rejected, these
arguments do not demonstrate a manifest error of law.
In their response to the motion to reconsider, the defendants asserted
that the plaintiff’s argument was moot, because he switched to a clerical job
before he filed this lawsuit, so he was out of danger by the time he filed his
amended complaint. Dkt. No. 63 at 2. In his reply, the plaintiff argued that the
defendants did not present any evidence that “after the plaintiff was given the
job title of clerk that plaintiff was no longer working around MCS or blade
coolant or even stopped doing any work in the body room.” Dkt. No. 64 at 3.
The plaintiff does not assert that he did work in the body room or around MCS
or blade coolant after he changed jobs; he asserts only that the defendants
didn’t produce any evidence showing that he didn’t. While it may have been
possible that clerks were trained “so they may aid when help is needed,” the
plaintiff has presented no evidence that he was exposed to chemicals or did any
work in the body room after his job changed. Id. Even if the court were to
conclude that the parties had a genuine dispute as to the question of whether
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the plaintiff was exposed to chemicals after he started working as a clerk, this
dispute would not be material; it would not impact the court’s conclusion that
the plaintiff failed to present evidence of deliberate indifference by Cerney or
Vande Slunt.
The court DENIES the plaintiff’s motion for reconsideration. Dkt. No. 62.
Dated in Milwaukee, Wisconsin this 17th day of February, 2017.

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