Poff v. Pollard et al

Filing 84

ORDER signed by Judge J P Stadtmueller on 7/16/2019 DENYING 83 Plaintiff's Motion for Reconsideration. (cc: all counsel, via mail to Jeff Poff at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFF POFF,
Plaintiff,
v.
JOHN SCHETTLE, MAN LEE,
AMANDA COLE, and JASON
JACKSON,

Case No. 15-CV-954-JPS

ORDER

Defendants.
On June 23, 2017, the Court issued an order granting summary
judgment in the above-captioned case and dismissing the action. (Docket
#70, #71). Ten months later, on April 2, 2018, Plaintiff filed a motion to alter
or amend the Court’s judgement, which the Court denied on April 9, 2018.
(Docket #72, #73). Plaintiff filed a notice of appeal on May 23, 2018, seeking
to appeal the June 23, 2017 judgment and the April 9, 2018 order denying
him relief from judgment. (Docket #74). In so doing, he requested the use of
funds from his release account to pay the initial partial filing fee as provided
by 28 U.S.C. § 1915(b)(1). (Docket #76). The Court construed Plaintiff’s filing
as a request for leave to proceed in forma pauperis on appeal, and denied the
request. (Docket #80). The Court determined that the appeal was not taken
“in good faith” as required by 28 U.S.C. § 1915(a)(3). Id. at 2. The Court
concluded that the appeal was frivolous, and no reasonable person could
suppose that it had merit. Id. Specifically, the Court noted that the motion
for leave to appeal in forma pauperis was “devoid of any mention of the
findings of the Court which he plan[ned] to challenge on appeal,” and the

“dearth of information ma[de] it impossible for this Court to find that the
appeal has any merit.” (Docket #80 at 2–3). Additionally, the Court did not
independently find any error that it had committed. Id. at 3. On November
29, 2018, Plaintiff filed a motion for reconsideration in which he requested
to use his release account statement in order to pay the initial partial filing
fee on appeal. (Docket #83).
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 “mistake, inadvertence, surprise, or excusable neglect,” or “any
other reason that justifies relief.” Fed R. Civ. P. 60(b)(1),(6).
Plaintiff points to no change in law or manifest error in law that
warrants an alteration or amendment of judgment under Rule 59(e); and, at
any rate, Plaintiff’s submission is several months too late. Moreover, after
examining Plaintiff’s motion, the Court does not find any basis to provide
relief under Rule 60(b). Plaintiff explains why he believes that he is entitled
to use his release account fund to pay his initial partial filing fee, but this
does not address the overriding issue, which is that the appeal lacks merit.
Additionally, the Court generally does not allow prisoners to use funds
from their release account to satisfy the filing fee requirements because
these accounts are maintained to be used upon release from custody.
Wilson v. Anderson, Case No. 14-C-798, 2014 WL 3671878, at *3 (E.D. Wis.
July 23, 2014) (citing Wis. Admin. Code § DOC 309.466); Smith v. Huibregtse,
151 F. Supp. 2d 1040, 1042 (E.D. Wis. 2001).
Page 2 of 3

Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#83) 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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