Smith v. Frame

Filing 34

ORDER signed by Judge J.P. Stadtmueller on 4/26/2018 DENYING 33 Plaintiff's Motion for Reconsideration. (cc: all counsel, via mail to Virgil M. Smith at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VIRGIL M. SMITH,
Plaintiff,
v.
BAILEY FRAME,

Case No. 17-CV-1745-JPS-JPS

ORDER
Defendant.

On April 17, 2018, the Court addressed two issues. First, it denied
Plaintiff’s motion for an injunction seeking additional law library access
because the relief sought had nothing to do with Plaintiff’s claim in this
case. (Docket #31 at 1). Second, the Court screened Plaintiff’s Third
Amended Complaint and determined that he could proceed on a claim for
violation of his First Amendment right to freedom of association. Id. at 2.
On April 23, 2018, Plaintiff filed a motion for reconsideration of those
rulings. (Docket #33). For the reasons explained below, it must be denied.
Though Plaintiff did not cite it, only one rule of procedure could
apply here. See Obreicht v. Raemisch, 517 F.3d 489, 493–94 (7th Cir 2008).
Federal Rule of Civil Procedure (“FRCP”) 60(b) offers relief from a court’s
orders or judgments 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 FRCP 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).1
Plaintiff’s bases for reconsideration are meritless and certainly fail to
meet the “exceptional circumstances” standard. First, Plaintiff claims that
the Court “recharacterized” his law library motion as one seeking
injunctive relief, and under Castro v. United States, 540 U.S. 375 (2003), the
Court should have given him notice and an opportunity to withdraw his
motion when doing so. (Docket #33 at 3). Ignoring the fact that Plaintiff
sought the very definition of injunctive relief—commanding an opposing
party to do something against their will—he misunderstands Castro. Castro
addresses the specific matter of courts recharacterizing certain postconviction motions as seeking habeas relief. Castro, 540 U.S. at 381–82. The
power to recharacterize in this way is limited because of the consequences
attendant to successive habeas filings. Id. Castro says nothing about motions
for injunctive relief in Section 1983 proceedings.
Next, Plaintiff suggests that the Court should have applied the
Turner test to balance the burden of his desired accommodation against the
prison’s penological interests. (Docket #33 at 3–5); Turner v. Safley, 482 U.S.
78 (1987). The Court did not reach that question because Plaintiff’s desired
injunctive relief was not tied to the claim he presented. (Docket #31 at 1).
Finally, Plaintiff says that the Court erred in dismissing his freedom of
speech claim. (Docket #33 at 5–7). As the Court has now explained more
than once, the proper vehicle for the First Amendment claim presented by

Plaintiff cites FRCP 59(e) as a basis for his motion, but that Rule applies
only to judgments, not the Court’s non-final orders. Fed. R. Civ. P. 59(e) (“A
motion to alter or amend a judgment must be filed no later than 28 days after the
entry of the judgment.”) (emphasis added).
1

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Plaintiff’s factual allegations is one for violation of his freedom of
association. (Docket #21 at 1–2; Docket #31 at 2). The two claims are not
simply alternatives; Plaintiff’s allegations do not state a claim for a violation
of his freedom of speech.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#33) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 26th day of April, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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