Doss v. Tomczak et al
Filing
57
DECISION AND ORDER signed by Judge Pamela Pepper on 1/8/2016 DENYING 56 plaintiff's Application for an Altered and Amended Decision and for Relief from the Order entered on 10/7/2015. (cc: all counsel; by US Mail to plaintiff) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TIMOTHY S. DOSS,
Plaintiff,
Case No. 14-cv-1100
v.
CLINT PEACHY, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING THE PLAINTIFF’S APPLIATION FOR AN
ALTERED AND AMENDED DECISION AND FOR RELIEF FROM THE ORDER
ENTERED ON OCTOBER 7, 2015 (DKT. NO. 56)
______________________________________________________________________________
Pro se plaintiff Timothy S. Doss is a Wisconsin state prisoner. On
October 7, 2015, the court dismissed the plaintiff’s complaint based on his
failure to exhaust the available administrative remedies. Dkt. No. 54.1 On
November 2, 2015, the plaintiff filed a motion pursuant to Federal Rules of
Civil Procedure 59(e) and 60(b)(1), (5), and (6), asking the court to alter and
amend its decision and to grant relief from the judgment. Dkt. No. 56. For the
reasons stated below, the court denies the plaintiff’s motion.
Rule 59(e) and Rule 60(b) motions serve a very limited purpose in civil
litigation. Whether a court should analyze a motion under Rule 59(e) or 60(b)
depends on the substance of the motion, not on the label the plaintiff affixes to
For purposes of this decision, the court will assume the reader’s familiarity
with that decision and will not repeat the lengthy factual background or
analysis here.
1
1
it. Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (citing Borrero v.
City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006)).
A court may alter or amend a judgment pursuant to Rule 59(e) when
there is newly discovered evidence or where there has been a manifest error of
law or fact. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006)
(citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir.
2000)). Rule 59(e) requires that the movant “clearly establish” one of the
aforementioned grounds for relief. Id. (citing Romo v. Gulf Stream Coach, Inc.,
250 F.3d 1119, 1122 n.3 (7th Cir. 2001)).
A court may vacate a judgment under Rule 60(b) for several reasons,
including mistake, excusable neglect, newly discovered evidence, and fraud.
See Fed. R. Civ. P. 60(b). “Rule 60(b) relief is an extraordinary remedy and is
granted only in exceptional circumstances.” Id. (quoting Karraker v. Rent-ACenter, Inc., 411 F.3d 831, 837 (7th Cir. 2005)).
The plaintiff argues that the court made manifest errors of law, a basis
encompassed by Rule 59(e). See Obriecht, 517 F.3d at 494. Accordingly, the
court will consider his motion under Rule 59(e), and not under Rule 60(b). A
“manifest error” is a “wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606
(7th Cir. 2000) (citation omitted). A plaintiff may not utilize a Rule 59(e) motion
to introduce new evidence or advance new arguments that could or should
have been presented prior to the court entering judgment. Moro v. Shell Oil
Co., 91 F.3d 872, 876 (7th Cir. 1996); Rothwell Cotton Co. v. Rosenthal & Co.,
2
827 F.2d 246, 251 (7th Cir. 1987). 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).
Here, the plaintiff advances new arguments never before presented to the
court. At the evidentiary hearing, the plaintiff argued only that he had
exhausted his available administrative remedies. Specifically, he argued that he
timely had filed an appeal from the dismissal of his grievance, despite the fact
that there was no evidence to support that argument. The court did not find
the plaintiff’s statements to be credible, and dismissed the case. Now, the
plaintiff argues that he was not required to exhaust available administrative
remedies because his claim fell outside the scope of the DOC procedures
and/or because the administrative remedies were unavailable to him. Dkt. No.
56, 6-15.
The plaintiff’s current arguments come too late. As indicated above, a
plaintiff may not advance new arguments that could have been advanced prior
to the court entering judgment in a Rule 59(e) motion. The court gave the
plaintiff ample opportunity to present these arguments both before the
evidentiary hearing and during the evidentiary hearing. He did not, and his
failure to do so is fatal to this motion.
III.
CONCLUSION
The court ORDERS that the plaintiff’s motion for an altered judgment
3
and amended decision and/or for relief from the order entered on October 7,
2015 (Dkt. No. 56) is DENIED.
Dated in Milwaukee, Wisconsin this 8th day of January, 2016.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?