Weiss v Barriebeau et al

Filing 117

ORDER signed by Chief Judge William C Griesbach on 11/20/18 denying 114 Motion for Reconsideration and denying 116 Motion for full federal jury investigation. (cc: all counsel and via US Mail to Mark Weiss) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK A. WEISS,
Plaintiff,
v.

Case No. 15-CV-1165

WAYNE BARRIBEAU,
DR. THOMAS MICHILOWSKI,
DR. JOSE ALBA,
JANE DOE, nurses at Wisconsin Resource Center,
JOHN DOE, two officers at Racine Correctional Institution,
CAROLYN PLANK, and
JOHN DOE, nurse or doctor at Racine Correctional Institution,
Defendants.

ORDER

The plaintiff, Mark A. Weiss, is a Wisconsin state prisoner representing himself. On
September 19, 2018, the Court granted the defendants’ motion for summary judgment, denied the
plaintiff’s motions for summary judgment, and denied the plaintiff’s motion for evidentiary hearing.
Judgment was entered on the same day. The plaintiff has filed a motion for reconsideration, a
“rebuttal” to defendants’ motion for summary judgment, and a motion for a federal jury
investigation. The court will deny these motions.
There is no motion for reconsideration under the Federal Rules of Civil Procedure. There
are, however, Rules 59(e) and 60(b). A motion filed under Rule 59(e) must be filed within twentyeight days of entry of the judgment, while a Rule 60(b) motion must be filed “within a reasonable
time - and for reasons (1), (2), and (3) no more than a year after the entry of the judgment.” Fed.
R. Civ. P. 59(e), 60(c)(1). Whether a motion should be analyzed under Rule 59(e) or 60(b) depends

on the substance of the motion, not on the timing or label affixed to 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)).
Altering or amending a judgment pursuant to Rule 59(e) is permissible 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)). Vacating a judgment under Rule 60(b) is permissible 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.” Harrington, 433 F.3d at 546 (quoting Karraker v. Rent-A-Center, Inc., 411 F.3d
831, 837 (7th Cir. 2005)). Rule 59(e), on the other hand, 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)).
The plaintiff’s “motion for reconsideration,” filed October 11, 2018, is a copy of an amended
complaint he filed on November 15, 2017, with the words “motion for reconsideration” and
“imminent danger, failure to protect prisoner” added to the first page. The Court struck this
pleading on October 21, 2017. The plaintiff’s refiling of this amended complaint does not provide
the Court with grounds to overturn its summary judgment order. In his “Rebuttal” filing, the plaintiff
argues that the defendants violated his rights. He reiterates arguments previously made in his
summary judgment motion and in response to the defendants’ motion for summary judgment.
Finally, the plaintiff filed a motion for a federal jury investigation. He seeks investigation of people

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and issues related to this case. However, this case is closed and the plaintiff has not provided reason
for investigating any issues raised in his motion.
The plaintiff has not shown that he is entitled to relief under Rule 59(e) or Rule 60(b).
IT IS THEREFORE ORDERED that the plaintiff’s motion for reconsideration (ECF No.
114) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for a full federal jury investigation
(ECF No. 116) is DENIED.
Dated at Green Bay, Wisconsin this 20th day of November, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court - WIED

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