Simpson v. Litscher et al

Filing 18

ORDER signed by Judge J.P. Stadtmueller on 5/18/2017 DENYING 16 Plaintiff's Motion to Alter or Amend the Court's 4/25/2017 Judgment. (cc: all counsel, via mail to Willie C. Simpson at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE C. SIMPSON,
Plaintiff,
v.
JON E. LITSCHER, SCOTT ECKSTEIN,
JOHN KIND, CAPTAIN SCHULTZ, LT.
ELSINGER, LT. VAHLAHAN, SGT.
KOELLER, SGT. MENNING, SGT.
ROZMARYNOSKI, SGT. HERT, C.O.
BRUNNER, C.O. GRABOWSKI, C.O.
BEBO, C.O. BONNIN, C.O. MEYER, C.O.
DELFOSSE, C.O. WEYCKER, C.O. TREML,
C.O. DIEDRICK, C.O. PEOTTER, C.O.
POTTS, C.O. VANDEVELDEN, C.O.
SCHEMECK, C.O. NEMETZ, C.O. REYES,
C.O. GUERRERO, C.O. LEWIS, C.O.
YANG, C.O. HEFFERNAN, C.O.
ROBEHHAGEN, J. PERTTU, C.O. PETER
BAUGH, C.O. AVERY, C.O. BRUSO, C.O.
TURCK, and JOHN DOES,

Case No. 17-CV-359-JPS

ORDER

Defendants.
On April 25, 2017, the Court screened Plaintiff’s complaint and
determined that it was factually frivolous. (Docket #14). Accordingly,
pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), the Court
dismissed this action with prejudice and assessed Plaintiff a strike. See
(Docket #14 and #15). Plaintiff now moves to alter or amend the judgment
pursuant to Federal Rule of Civil Procedure 59(e). (Docket #16).1
In construing pro se filings generously, the Court is required to consider
what grounds for post-judgment relief might be appropriate, regardless of the
authorizing Rule the litigant actually cited. See Obriecht v. Raemisch, 517 F.3d 489,
493 (7th Cir. 2008). Because Plaintiff identifies only purported legal errors the
1

Rule 59(e) empowers a court to alter or amend a judgment on motion
by a party. Fed. R. Civ. P. 59(e). The party seeking relief under this Rule
must establish “a manifest error of law or present newly discovered
evidence.” Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). “Motions
under Rule 59(e) cannot be used to present evidence that could have been
presented before judgment was entered.” Id. Whether to grant a motion to
amend a judgment “is entrusted to the sound judgment of the district
court,” In re Prince, 85 F.3d 314, 324 (7th Cir. 1996), but the movant must
first “clearly establish” his right to relief, Romo v. Gulf Stream Coach, Inc., 250
F.3d 1119, 1122 n.3 (7th Cir. 2001).
As another branch of this Court recently noted, a “manifest error of
law” must be “egregious” to warrant relief under this Rule. Stelter v. Meli,
Case No. 14–cv–904–pp, 2017 WL 663546, at *1 (E.D. Wis. Feb. 17, 2017).
“Appeal, not reconsideration, is the time to deal with the majority of legal
errors,” and so only “manifest errors. . .so obvious that no additional
explanation is needed or possible” are proper subjects of a Rule 59 motion.
Burney v. Thorn Americas, Inc., 970 F. Supp. 668, 671 (E.D. Wis. 1997). Such
error “is not demonstrated by the disappointment of the losing party” but
instead “the ‘wholesale disregard, misapplication, or failure to recognize
controlling precedent.’” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)).
Plaintiff’s motion presents no more than his disagreement with the
Court’s legal conclusions. This is not a proper basis for granting relief under

Court committed, Rule 59 is the appropriate starting point for his motion, and
other rules, like Rule 60(b), are not. See id.; Fed. R. Civ. P. 60(b).

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Rule 59(e). First, Plaintiff claims that the Court “overlooked facts in the
complaint identifying a systemwide prison policy authorizing prison guard
defendants discretion to deny Plaintiff medication and food.” (Docket #16
at 1–3). This is incorrect for two reasons. First, nothing in Plaintiff’s
complaint suggests that he seeks relief for a prison-wide policy permitting
correctional officers to deny him food and medicine. Plaintiff’s claims are
rooted in individual liability for distinct instances of constitutional
violations. See (Docket #1 at 3–4). He nowhere posits a Monell theory based
on unconstitutional prison policies. See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). Plaintiff cannot amend his factual allegations by way of a
Rule 59(e) motion in order to avoid dismissal.2
Second, the Court did not ignore Plaintiff’s allegations in this regard.
Instead, considering his allegations of a paranoid conspiracy against the
backdrop of the plausibility pleading regime and his prior frivolous
litigation, the Court concluded that his factual allegations were clearly
baseless. (Docket #14 at 9–11); Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.
2009); Walton v. Walker, 364 F. App’x 256, 257 (7th Cir. 2010). Thus, the Court
In his motion, Plaintiff tries to elaborate on the theory behind his claims,
but to no avail. He argues that he is subject to a back-of-cell restriction when food
or medicine is delivered. (Docket #16 at 4). This gives guards an opportunity to
dump his food and medicine on the floor. Id. at 5. When he refuses to comply with
the back-of-cell restriction in order to keep these items off the floor, guards simply
deny him the food and medicine. Id.; see also (Docket #17-1 at 1–17) (Plaintiff’s
exhibits purporting to substantiate these prison policies).
This explanation does not affect the Court’s screening analysis. First, none
of these new factual allegations are contained in his complaint, and no amount of
generous inference could have put them there. Second, assuming these things are
true, which the Court need not do in the present posture, Plaintiff still does not
answer the Court’s finding that his allegations are frivolous and therefore subject
to dismissal under the PLRA. See (Docket #14 at 10–11).
2

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considered Plaintiff’s pleaded facts but was obliged under the relevant legal
standards to reject them.3
Relatedly, Plaintiff attacks the Court’s application of the plausibility
standard to his claims, arguing that the Court failed to pay his allegations
proper deference. (Docket #16 at 2–3). He contends that his complaint
should have been dismissed only if he could prove “no set of facts” entitling
him to relief. Id. at 3. But this is, firstly, the wrong standard, as explained in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007), because it sets the
pleading bar too low. Secondly, following the plausibility pleading regime
first established in Twombly, Seventh Circuit cases like Cooney and Walton
dictate that the Court apply a more stringent plausibility bar to its review
of allegations like Plaintiff’s. To ignore this precedent would have been its
own manifest error of law. See Oto, 224 F.3d at 606. In sum, because
Plaintiff’s arguments fall well short of “clearly establish[ing]” that Rule
59(e) relief is warranted, Romo, 250 F.3d at 1122 n.3, the Court will deny the
motion.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to alter or amend the Court’s
April 25, 2017 judgment (Docket #16) be and the same is hereby DENIED.

Plaintiff contends that the Court should not have put much weight behind
the Seventh Circuit’s recent issuance of a Mack bar against him, (Docket #14 at 2,
10), noting that he has filed a petition for writ of certiorari to the Supreme Court,
(Docket #16 at 6); (Docket #17-1 at 18–36). But simply stating that the Mack bar may
be subject to the Supreme Court’s discretionary review does little to call the Court
of Appeals’ conclusions into question. The Court’s reliance on the Mack bar as
evidence of Plaintiff’s inclination to pursue frivolous claims was proper.
3

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Dated at Milwaukee, Wisconsin, this 18th day of May, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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