O'Boyle v. Carrasco et al

Filing 32

ORDER signed by Chief Judge Pamela Pepper on 3/11/2020 DENYING 21 plaintiff's motion for reconsideration. (cc: all counsel, via mail to Ryan O'Boyle at Kettle Moraine Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RYAN P. O’BOYLE,
Plaintiff,
v.

Case No. 16-cv-959-pp

GILBERT CARASSCO, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
(DKT. NO. 21)
______________________________________________________________________________
Ryan P. O’Boyle is a Wisconsin state prisoner and is representing
himself. He filed this lawsuit in July 2016, dkt. no. 1, then asked the court to
delay screening his complaint until the state court decided a then-pending
post-conviction motion, dkt. no. 9. The court granted that request and stayed
the case. Dkt. No. 10. In April 2018, the plaintiff told this court that the state
court had ruled and asked this court to lift the stay and reopen his case. Dkt.
No. 11. In July 2018, the plaintiff filed a motion to amend his complaint (but
did not include a proposed amended complaint). Dkt. No. 14. He filed an
amended complaint in September 2018, along with a motion to appoint
counsel. Dkt. Nos. 15, 16.
In March 2019, the court issued an order lifting the stay, reopening the
case, screening the amended complaint and denying the plaintiff’s motion to
appoint counsel. Dkt. No. 19. The court allowed the plaintiff to proceed on
several claims: an illegal arrest claim against defendants Barbara O’Leary,
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Gilbert Carassco, Kristopher M. Maduscha and Michael A. Antoniak; a claim
against Mary Schmitz for unlawfully detaining him without a timely probable
cause hearing; and claims against Edwin L. Johnson for not providing the
plaintiff an attorney when he asked and for coercing him into incriminating
himself. Dkt. No. 19 at 21–25. The court also dismissed several defendants,
including Ricardo Moran and Joshua Martinson. Id. at 13–15, 19–20.
The plaintiff has asked the court to reconsider its decision to dismiss two
defendants—Moran and Martinson. Dkt. No. 21. The plaintiff cites Rule 54(b),
which allows a court to revise at any time a non-final order that adjudicates
fewer than all the claims or defendants in a multi-claim or multi-defendant
case. See Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012). Courts
consider motions to revise a non-final order using the same standard courts
apply when deciding whether to alter or amend a judgment under Fed. R. Civ.
P. 59(e). Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.
1987). Rule 59(e) allows a court to alter or amend a judgment “when there is
newly discovered evidence or there has been a manifest error of law or fact.”
Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006) (citation omitted).
“A ‘manifest error’ is not demonstrated by the disappointment of the losing
party.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). It is “the
‘wholesale disregard, misapplication, or failure to recognize controlling
precedent.’” Id. (quoting Sedrak v. Callahan, 897 F. Supp. 1063, 1069 (N.D. Ill.
1997)).

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The plaintiff contends that the court dismissed Moran and Martinson
only because it did not understand how they are tied to an alleged Fourth
Amendment violation. Dkt. No. 21. Ricardo Moran is the victim of the crime
that resulted in the plaintiff’s prison term. In his amended complaint, the
plaintiff alleged that Moran identified him out of a photo array. He alleged that
he asked for a handwriting sample from Moran to prove that the signature on
the array was forged, but that request was denied. The court did not commit a
manifest error of law in dismissing Moran. The court dismissed Moran because
Moran cannot be sued under 42 U.S.C. §1983. One of the requirements for
liability under §1983 is that a defendant be acting under color of state law.
This means that nearly every defendant in §1983 cases is a government official.
London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir. 2010) (internal
citation omitted). Moran was a private citizen, not a government official. Moran
is not a state actor and he cannot be sued under §1983.
The court explained in its screening order that the only allegation in the
complaint regarding Joshua Martinson (a State Fair guard) was that “[h]ad
Joshua P. Martinson . . . provided signature samples,” the plaintiff would have
been able to prove evidence tampering and forgery. Dkt. No. 19 at 19–20. In his
motion to reconsider, the plaintiff reiterates that he needs to be able to prove
that Martinson’s signature was forged. But Martinson was not able to pick
anyone, including the plaintiff, out of a photo array. Even if Martinson was
acting under color of state law (which the court has already stated is not clear),
Martinson’s inability to identify anyone out of the photo array means he had
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nothing to do with establishing probable cause to arrest the plaintiff. The
plaintiff has not demonstrated that the court committed manifest error in
dismissing Martinson.
The court DENIES the plaintiff’s motion for reconsideration. Dkt. No. 21.
Dated in Milwaukee, Wisconsin, this 11th day of March, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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