Carter v. McGowan et al

Filing 36

ORDER signed by Judge J.P. Stadtmueller on 3/24/2017 DENYING 34 Plaintiff's Request for Reconsideration of the Court's 3/14/2017 Order. (cc: all counsel, via mail to Tommie L. Carter at Columbia Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TOMMIE L. CARTER,
Plaintiff,
v.

Case No. 16-CV-838-JPS

ALLISON MCGOWAN, AMY
GUNDERSON, DEREK
SCHAUTEN, and JOEL SANKEY,

ORDER
Defendants.

On March 14, 2017, the Court entered an order denying several of
Plaintiff’s motions (Docket #33), including a motion to compel production of
surveillance footage (Docket #30), a motion for appointment of counsel
(Docket #31), and a motion for sanctions and an investigation against prison
officials (Docket #32). On March 22, 2017, Plaintiff filed a letter requesting
reconsideration of that decision. (Docket #34).
Although he does not cite any authority for his request, the only
relevant rule is Federal Rule of Civil Procedure 60(b), which permits a court
to grant relief from one of its orders if a party can show “the narrow grounds
of mistake, inadvertence, surprise, excusable neglect, newly discovered
evidence, voidness, or ‘any other reason justifying relief from the operation
of the judgment.’” Tylon v. City of Chicago, 97 F. App’x 680, 681 (7th Cir. 2004)
(quoting Fed. R. Civ. P. 60(b)(6)). Such relief “is an extraordinary remedy and
is granted only in exceptional circumstances.” Harrington v. City of Chicago,
443 F.3d 542, 546 (7th Cir. 2006).
Plaintiff’s motion merely states his disagreement with the Court’s
March 14, 2017 order. Asserting “that the. . .court’s underlying judgment was

wrong. . .is an impermissible use of Rule 60(b).” Tylon, 97 F. App’x at 681.
Further, Plaintiff fails to address any of the specific Rule 60(b) grounds for
relief. Banks v. Chicago Bd. of Educ., 750 F.3d 663, 667 (7th Cir. 2014) (“The
district court does not abuse its discretion by denying a Rule 60(b) motion
that is not based on one of the specified grounds for relief.”); Monzidelis v.
World's Finest Chocolate, Inc., 92 F. App’x 349, 353 (7th Cir. 2004) (Rule 60(b)
motion denied because the movant “failed to even argue that mistake,
excusable neglect, newly discovered evidence, fraud, or other exceptional
circumstances had undermined the legitimacy of the prior judgment”)
(emphasis in original).
For example, with respect to the motion to compel, the Court found
that Plaintiff failed to show that he had engaged in good-faith meet-andconfer efforts to resolve his dispute with defense counsel prior to filing the
motion. (Docket #33 at 1–2). In the instant motion, Plaintiff claims he made
such efforts. (Docket #34 at 1). Once again, he offers no proof of this. Further,
while he says that he attached Defendants’ responses to his discovery
requests to his motion, id., they are not to be found in the record, nor are they
attached to his motion for reconsideration.
Likewise, Plaintiff objects to the Court’s denial of his motion for
appointment of counsel on the ground that he failed to submit evidence of his
attempts to secure his own counsel, as is required before the Court can
consider such a request. (Docket #33 at 2–3); (Docket #34 at 2). He does not
cure this deficiency in his motion for reconsideration, and the Court’s ruling
therefore must stand.
Finally, as to the motion for sanctions and an investigation, the Court
noted in its prior order that Plaintiff believes that prison officials are
interfering with his ability to litigate this case by, inter alia, inappropriately
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searching his cell and confiscating his legal materials. (Docket #33 at 3). The
Court, in view of the relevant legal standards, could not grant Plaintiff
preliminary injunctive relief on his unverified and far-ranging allegations of
wrongdoing. Id. at 4. That has not changed, since all Plaintiff offers in his
letter are additional unsubstantiated accusations. Because he advances no
reason on which to credibly question the Court’s prior conclusions, Plaintiff’s
request for reconsideration must be denied.1
Accordingly,
IT IS ORDERED that Plaintiff’s request for reconsideration of the
Court’s March 14, 2017 order (Docket #34) be and the same is hereby
DENIED.

1

The Court separately notes that on March 22, 2017, Plaintiff also submitted
a letter objecting to Defendants’ taking his deposition on March 30, 2017. (Docket
#35). Plaintiff claims he is undergoing a mental health evaluation that day and
cannot attend a deposition. Id. at 1. He also appears to believe that he can refuse
to sit for a deposition because he intends to invoke his Fifth Amendment right
against self-incrimination as to some or all of the questions that will be asked. Id.
To the extent Plaintiff is asking the Court to quash the notice of deposition
on these grounds, the request is denied. First, Plaintiff may invoke his Fifth
Amendment rights during the deposition, but this does not absolve him of his
duty to attend and, where appropriate, make an assertion of those rights. Second,
assuming that a scheduling conflict exists, Plaintiff concedes that he sent a letter
to defense counsel only last week raising his concerns and that he has not received
a response. Id. at 2. Absent a certification that the parties have met and conferred
in a good-faith attempt to resolve Plaintiff’s potential scheduling conflict, the
Court cannot intervene. See Fed. R. Civ. P. 26(c)(1) (requiring a party seeking a
protective order to certify as to his attempts to resolve the dispute without court
action).
If Plaintiff declines to sit for a deposition, the Court invites Defendants to
file a motion for sanctions, including potential dismissal of this action.

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Dated at Milwaukee, Wisconsin, this 24th day of March, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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