Price v. Wisconsin Department of Corrections

Filing 72

ORDER signed by Judge Pamela Pepper on 12/4/2018 DENYING 58 Plaintiff's Motion for Reconsideration. (cc: all counsel, via mail to Roland Price at New Lisbon Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ROLAND PRICE,
Plaintiff,
v.

Case No. 15-cv-774-pp

PHILLIP FRIEDRICH,
Defendant.
______________________________________________________________________________
ORDER DENYING MOTION FOR RECONSIDERATION (DKT. NO. 58)
______________________________________________________________________________
On July 16, 2018, the court granted the defendant’s motion for partial
summary judgment based on the plaintiff’s failure to exhaust administrative
remedies, and dismissed the plaintiff’s First Amendment retaliation claim. Dkt.
No. 57. The court concluded that the plaintiff did not file any inmate grievances
regarding retaliation in the fourteen calendar days after the alleged incident
occurred, which meant that he had failed to the exhaust administrative
remedies outlined in Wis. Admin. Code §310.09. Id. at 12-13. The plaintiff has
asked the court to reconsider that decision. Dkt. No. 58.
The court can reconsider a decision under Federal Rule of Civil
Procedure 59(e) or 60(b). Rule 59(e) motions serve a very limited purpose in
civil litigation. A court may alter or amend a judgment under 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 Chi., 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 moving party “clearly establish” one of those
grounds for relief. Id. (citing Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119,
1122 n.3 (7th Cir. 2001)). “Motions under Rule 59(e) cannot be used to present
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evidence that could have been presented before judgment was entered.”
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)). Under Rule 60(b), the
court can vacate a judgment or order for several reasons including “mistake,
inadvertence, surprise, or excusable neglect” and “fraud, misrepresentation, or
misconduct by an opposing party.” See Fed. R. Civ. P. 60(b). “Rule 60(b) relief
is an extraordinary remedy and is granted only in exceptional circumstances.”
Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005).
The plaintiff’s motion for reconsideration discusses a variety of issues,
none of which directly relate to the court’s conclusion that the plaintiff did not
file any inmate grievances alleging retaliation in the fourteen days following the
alleged incident. Dkt. No. 58. The plaintiff first takes issue with the fact that,
during briefing, the court granted the defendant’s motion for extension of time
and allowed defense counsel to substitute for an attorney who was on family
medical leave for a portion of the year. Id. at ¶¶1-3. The plaintiff states that the
request for an extension was a “tactic for frustrating this court.” Id. at ¶2. The
court disagrees; there is nothing fraudulent or improper about asking for an
extension of time or for substituting an attorney who is on extended leave.
Next, the plaintiff reiterates arguments from his opposition brief
regarding a “heightened pleading standard,” id. at ¶¶4-12 (which the court
addressed in the underlying decision) and the “fruits of the poisonous tree
doctrine,” id. at ¶¶13-14 (which does not apply in this civil case). The plaintiff
appears to imply that the court failed to acknowledge relevant laws, but he
cites exactly the same cases the court used in the underlying decision. The
plaintiff disagrees with the court’s analysis, but mere disagreement is not
enough to show “manifest error of law.” See Oto v. Metro. Life Ins. Co., 224
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F.3d 601, 606 (7th Cir. 2000) (“A manifest error is not demonstrated by the
disappointment of the losing party.”).
Finally, the plaintiff discusses Conduct Report #2155463, which he
believes was mishandled, along with the writ of certiorari that he used to appeal
that conduct report in Wisconsin state court. See Dkt. No. 58 at ¶¶15-18. The
conduct report is unrelated to this lawsuit and involves a correctional officer
who is not a defendant in this case. Even if the conduct report was related to
this lawsuit, the plaintiff cannot present evidence through a motion to
reconsider if it could have been presented before the court issued the decision
he asks it to reconsider. Given that the conduct report was from 2011, see Dkt.
No. 60 at 1, the plaintiff could have presented it during summary judgment
briefing if he had thought it was relevant.
The plaintiff has not identified newly discovered evidence, a manifest
error of law or fact, mistake, or fraud. The court will deny his motion for
reconsideration.
The court DENIES the plaintiff’s motion for reconsideration. Dkt. No. 58.
Dated in Milwaukee, Wisconsin this 4th day of December, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Court Judge

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