Siddique v. Laliberte et al

Filing 106

ORDER signed by Judge J P Stadtmueller on 7/16/2019 DENYING 98 Plaintiff's Motion for Reconsideration. (cc: all counsel, via mail to Mohammad Samir Siddique) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MOHAMMAD SAMIR SIDDIQUE,
Plaintiff,
v.
MICHAEL LALIBERTE, DAVID
STOCKTON and RICHARD R.
THOMAS,

Case No. 15-CV-1-JPS
7th Circuit Case No. 19-1901

ORDER

Defendants.
On April 10, 2019, this Court issued an order granting Defendants’
motion for summary judgment. (Docket #95). Plaintiff filed a motion for
reconsideration on May 8, 2019. (Docket #98).1 In his motion, Plaintiff
argues that the Court applied an incorrect law, and, in so doing, erred in
granting qualified immunity to the Defendants. Plaintiff brings his motion

Plaintiff filed a notice of appeal earlier in the day that he filed the motion
for reconsideration. (Docket #97, #98). A notice of appeal typically deprives the
district court of jurisdiction. McCarter v. Ret. Plan for Dist. Managers of Am. Fam. Ins.
Group, 2008 WL 2833288, at *1 (W.D. Wis. Jan. 24, 2008) (“[B]y filing a notice of
appeal before filing their motion for reconsideration, plaintiffs have deprived this
court of the authority to decide their motion.”); Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of the case involved in the
appeal.”). However, “the district court retains jurisdiction to take additional action
in aid of the appeal, such as denying Rule 60(b) relief on the merits, despite the
pendency of an appeal.” Brown v. Pierson, 12 F. App’x. 398, 402 (7th Cir. 2001)
(quoting Chi. Downs Ass’n v. Chase, 944 F.3d 366, 370 (7th Cir. 1991)). Additionally,
the Seventh Circuit has requested status reports regarding Plaintiff’s motion for
reconsideration, suggesting that, under these circumstances, the Court retains
jurisdiction. (Appeal No. 19-1901, Docket #5, #10). Accordingly, the Court will
dispose of the motion for reconsideration.
1

under Federal Rules of Civil Procedure 49(e) and 50(b)(6), neither of which
subsections exist. The Court will construe the motion as one for amendment
of judgment or relief from order under Federal Rules of Civil Procedure
59(e) and 60(b). That motion is now fully briefed and, for the reasons
explained below, will be denied.2
A party may file a motion to alter or amend judgment “no later than
28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). “[T]he only
grounds for a Rule 59(e) motion. . .are newly discovered evidence, an
intervening change in the controlling law, and manifest error of law.”
Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). A party may file a
motion for relief from a judgment or order under certain circumstances that
include “any other reason that justifies relief.” Fed R. Civ. P. 60(b)(6).
In order to overcome the defense of qualified immunity, a party
must show that the violation of his constitutional rights was “clearly
established under applicable law at the time and under the circumstances
that the defendant official acted.” Easterling v. Pollard, 528 Fed. App’x 653,
656 (7th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Plaintiff argues that the Court committed a manifest error of law when it
applied Wis. Stat. § 36.09(3m), which was not in effect at the time of the
events in question, to analyze Wis. Stat. § 36.09(5). (Docket #98).
Wis. Stat. § 36.09(5) (2013), amended by Wis. Stat. § 36.09(5) (2017),
allowed students to “organize themselves in a manner they determine” and

To the extent that a portion of Defendants’ response can be construed as a
motion for reconsideration, the Court finds that it is untimely and improperly
presented to the Court. Fed. R. Civ. P. 59(e); Exxon Shipping Co. v. Baker, 554 U.S.
471, 485 n.5 (2008) (Rule 59(e) “may not be used to relitigate old matters”) (quoting
11 C. Wright & A. Miller, Fed. Prac. & Proc. § 2810.1 (2d ed. 1995)).
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“to select their representatives to participate in institutional governance.”3
In 2013, the subsection began with a qualification that students’
participation in governance was “subject to the responsibilities and powers
of the board, the president, the chancellor and the faculty.” Id. In 2013, when
the events in question arose, the term “subject to” was undefined. In
subsequent versions of the statute, “subject to” was defined as “subordinate
to.” See Wis. Stat. § 36.09(3m).
Plaintiff argues that a circuit court case, Spoto v. Board of Regents,
stands for the proposition that “the term ‘subject to’ may not be defined as
an equivalent to ‘subordinate to.’” 92-CV-5046, at *15 (Dane Cty. Cir. Ct.
June 6, 1994). In Plaintiff’s eyes, this means that the students’ right to selfappointment was, in 2013, absolute, or at least equal to the power held by
the chancellor, president, and faculty.
However, the more persuasive precedent regarding this subsection
is to be read in Student Ass’n of Univ. of Wis.-Milwaukee v. Baum, 246 N.W.2d
622 (Wis. 1976). There, the Wisconsin Supreme Court acknowledged that,
in light of the subsection’s first sentence, “the rights of the students
are. . .subject to some qualifications.” Id. at 625. By the terms of Wis. Stat. §
36.09(5) (2013), these qualifications included the power of the president,
chancellor, and faculty. Even if, in 2013, it was not clear that the students’
right to participate in government was subordinate to the power of the
chancellor, Baum nevertheless acknowledges that the right was at least

The Court notes that its prior orders quoted from the most recent version
of Wis. Stat. § 36.09(5), rather than the 2013 version. (Docket #60 at 2–3); (Docket
#95 at 3). This error has no bearing on the outcome, as the Court’s discussion about
Baum and its conclusions regarding the scope of the right to participate in
government pertained to language contained in the 2013 version of the statute. See
(Docket #95 at 14–15).
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qualified by that power. Therefore, in its original order, the Court correctly
observed that the scope of an administrator’s power to curb a student’s
participation in student government was not clear.
Qualified immunity asks whether a reasonable official would have
known that his or her conduct violates a statutory or constitutional right.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Anderson v. Creighton, 483 U.S.
635, 640 (1987). An administrator reading Wis. Stat. § 36.09(5) (2013) may
have reasonably believed that he had the authority to prevent certain
students from participating in student government under certain
circumstances. In light of this statute, he would have had no reason to know
that his conduct violated a statutory or constitutional right. Accordingly,
the Court will not reverse the finding of qualified immunity on the basis of
an error of law, nor does it find any other reason justifying relief from the
order.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#98) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 16th day of July, 2019.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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