Brown v. Milwaukee County Jail et al
Filing
23
DECISION AND ORDER signed by Judge Pamela Pepper on 2/1/2016 re 22 Plaintiff's Petition to Review Decision. (cc: all counsel; by US Mail to plaintiff)(pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
v.
Case No. 15-cv-509-pp
MILWAUKEE COUNTY JAIL, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S
PETITION TO REVIEW DECISON (DKT. NO. 22)
______________________________________________________________________________
The plaintiff has filed a “petition” asking the court to review its January
12, 2016 order screening his complaint. In that order, the court determined
that the plaintiff could not challenge his criminal conviction in this civil rights
action. Dkt. No. 21 at 12-14. The court advised the plaintiff that he could file
an amended complaint if he wanted to proceed on his allegations that he was
mistreated at the Milwaukee County Jail. Dkt. No. 21 at 14-16.
In the “petition to review,” the plaintiff contends that the court
misapplied Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (suit under §1983
barred where judgment in plaintiff’s favor would necessarily imply the invalidity
of criminal conviction, unless conviction has been invalidated). According to
the plaintiff, the Wisconsin State Public Defender’s Officer appointed Attorney
Mark Rosen to represent him in his criminal appeal, which violated his right to
choose his own lawyer, or to proceed pro se.
Federal Rule of Civil Procedure 54(b) provides in relevant part that:
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any order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than
all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights and
liabilities.
A district court will grant a motion for reconsideration when: (1) the
court has patently misunderstood a party; (2) the court has made a decision
outside the adversarial issues presented to the court by the parties; (3) the
court has made an error, not of reasoning, but of apprehension; (4) there has
been a controlling or significant change in the law since the submission of the
issue to the court; or (5) there has been a controlling or significant change in
the facts since the submission of the issue to the court. Bank of Waunakee v.
Rochester Cheese Sales Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). Motions for
reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence. Caisse Nationale de Credit
Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
“Reconsideration is not an appropriate forum for rehashing previously rejected
arguments or arguing matters that could have been heard during the pendency
of the previous motion.” Id. at 1270.
First, the court did not misapply Heck: an alleged Sixth Amendment
violation at the appellate level is a challenge to the original conviction—the very
thing that Heck says a plaintiff may not challenge in a §1983 case. Second, the
plaintiff is incorrect the Public Defender violated his Sixth Amendment rights
by selecting his attorney for him; the Sixth Amendment does not include an
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unqualified right to select one’s own attorney. See Wheat v. United States, 486
U.S. 143, 158-59 (1988). Third, even if Heck did not bar the plaintiff from
bringing an ineffective assistance counsel claim in a §1983 action, the plaintiff
has not alleged that Attorney Rosen was ineffective. Finally, if the plaintiff had
wanted to represent himself at the appellate level, he has that right, see Faretta
v. California, 422 U.S. 806 (1975), and he simply could have fired Attorney
Rosen. For all of these reasons, the court will deny the plaintiff’s motion for
reconsideration.
The court reminds the plaintiff that if he wants to proceed on his claims
that he was mistreated at the Milwaukee County Jail, he must file an amended
complaint by February 19, 2016. If the plaintiff does not file an amended
complaint by February 19, 2016, the court may dismiss his case.
The court DENIES the plaintiff’s petition to review decision (Dkt. No. 22).
Dated in Milwaukee, Wisconsin this 1st day of February, 2016.
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