Cannon v. Newport et al

Filing 74

ORDER signed by Judge Pamela Pepper on 8/15/2017 DENYING 70 Plaintiff's Motion to Vacate. (cc: all counsel, via mail to Billy Cannon at Stanley Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
BILLY CANNON,
Plaintiff,
v.

Case No. 16-cv-10-pp

DEAN NEWPORT,
Defendant.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION
TO VACATE JUDGMENT (DKT. NO. 70)
______________________________________________________________________________
On June 22, 2017, the court entered an order granting the defendant’s
motion for summary judgment. See Dkt. Nos. 65, 66. The plaintiff filed a
motion to vacate; that motion now is fully briefed.
The plaintiff argues that in granting the defendant’s motion, the court
misapplied the law relating to First Amendment retaliation claims. Dkt. No. 70.
He also argues that, based on certain representations made by the defendant
in the course of briefing his motion for summary judgment, the court must
reinstate many of the defendants the plaintiff named in his original complaint
(the court had found that the plaintiff failed to state a claim against all of the
defendants except Newport). Id. The court will deny the plaintiff’s motion.
“Rule 59(e) allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present newly discovered
evidence.” 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). Whether to
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grant a motion to amend judgment “is entrusted to the sound judgment of the
district court.” In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).
The plaintiff has not met the standard for the court to alter or amend its
judgment under Rule 59(e). The plaintiff has not provided the court with any
new evidence, only new theories based on the evidence already before the
court. This is an insufficient basis for a plaintiff to seek to alter or amend a
judgment. LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th
Cir. 1995).
Further, the plaintiff has not established that the court made a manifest
error of law. The plaintiff argues that the court should have credited his
assertion that the defendant knew that the plaintiff had filed a John Doe
petition, but the court has explained at length why it would have been
improper for the court to do so. There is no reason for the court to repeat that
explanation here. In summary, the court based its decision on the fact that the
plaintiff presented no evidence in support of his assertion. See Dkt. No. 65 at
9-10.
Finally, the plaintiff asks the court to reconsider its screening order and
reinstate many of the defendants the court previously had dismissed. The
plaintiff argues that, if the defendant didn’t know about the John Doe
investigation, then the court should assume that the District Attorney’s office
was using the defendant and his investigation as a way of retaliating against
the plaintiff because “they” (it’s unclear who “they” is—the entire office?) knew
about the John Doe investigation.
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The plaintiff now wants the court to assume that the defendant was a
tool being used by one or more people at the District Attorney’s office to
retaliate against the plaintiff. This theory ignores the fact that it was the
defendant’s idea (not that of someone at the District Attorney’s office) to search
the plaintiff’s cell, and that the defendant has sworn under oath that the
reason he suggested the search was to determine whether the judge’s clerk had
secretly passed sealed documents to the plaintiff. The plaintiff still has not
presented any evidence to undermine the defendant’s sworn statements. The
plaintiff has failed to state a claim against anyone at the District Attorney’s
office on this revised theory.
The court DENIES the plaintiff’s motion to vacate. Dkt. No. 70.
Dated in Milwaukee, Wisconsin this 15th day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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