Shaw v. Kemper et al

Filing 22

ORDER signed by Judge J P Stadtmueller on 4/14/2021: DENYING 19 Plaintiff's Motion to Alter or Amend Judgment and DENYING as moot 18 Plaintiff's Motion to Amend Complaint. See Order. (cc: all counsel, via mail to Terrance J Shaw at Racine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE J. SHAW,
Plaintiff,
v.
PAUL S. KEMPER, KEVIN CARR,
JOSEPH MCLEAN, KIM M.
CHAFFIN, JERILYN TAYLOR,
TRAVIS BRADY, MICHELLE BONES,
LON BECHER, E. DAVIDSON,
CINDY O’DONNELL, KRISTEN
VASQUEZ, and LAURA FRAZIER,

Case No. 20-CV-599-JPS

ORDER

Defendants.

Plaintiff Terrance J. Shaw, an inmate confined at Racine Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983 alleging that his
rights under the Eighth Amendment, the Americans with Disabilities Act,
and the Rehabilitation Act were violated. (Docket #1). On March 31, 2021,
the Court screened the complaint pursuant to 28 U.S.C. § 1915A and
dismissed this action on the grounds that Plaintiff had failed to state a claim.
(Docket #16). Specifically, the Court held that Plaintiff failed to state an
Eighth Amendment claim against Dr. Joseph McLean and Nurse Kim
Chaffin for their failure to schedule him for a left hip replacement surgery.
(Docket #16 at 8-11). On April 12, 2021, Plaintiff filed a motion for
reconsideration under Federal Rule of Civil Procedure 59(e), (“Rule 59(e)”),
(Docket #19), and a motion to amend the complaint, (Docket #18).
Rule 59(e) permits a party to ask for alteration or amendment of a
judgment within twenty-eight days of the judgment’s issuance. Fed. R. Civ.

P. 59(e). Plaintiff’s motion was timely filed, and so the Court may consider
its merits. Nevertheless, the standard that Plaintiff must meet to have his
motion granted is steep. A Rule 59(e) motion may be granted only where
the movant clearly establishes: “(1) that the court committed a manifest
error of law or fact, or (2) that newly discovered evidence precluded entry
of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir.
2013); Barrington Music Prods., Inc. v. Music & Arts Ctr., 924 F.3d 966, 968
(7th Cir. 2019); Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th Cir. 2018)
(“District courts need not grant Rule 59(e) motions to advance arguments
or theories that could and should have been made before the district court
rendered a judgment.”) (emphasis added) (internal quotation omitted).
In his motion for reconsideration, Plaintiff states that the claim he
actually meant to plead is that he suffered unnecessarily prolonged pain in
violation of the Eighth Amendment because Dr. McLean and Nurse Chaffin
were deliberately indifferent when they did not prescribe him pain
medication for his left hip. (Docket #19, #20). Plaintiff seems to argue that
the Court, in a liberal reading of his pro se complaint, should read into it
claims that he never pled. (Id.) Although Plaintiff’s complaint is verbose
with information regarding the alleged deliberate indifference to his left hip
pain—nowhere in the complaint does he mention pain medication or the
lack thereof. (Docket #1). Further, Plaintiff’s complaint includes
information about his inmate complaint allegations regarding his left hip
pain. (Id. at 4-8). Plaintiff cites to the same inmate complaints in his
proposed amended complaint. (Docket #18-2). Based on Plaintiff’s own
submissions, the inmate complaints did not include allegations regarding

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pain medication.1 (Docket #1 at 4-8; Docket #18-2). Indeed, Plaintiff did not
bring up the pain medication issue in either his inmate complaints or his
complaint in this action. (Id.) Instead, Plaintiff’s inmate complaints and
complaint in this case focus on Plaintiff wanting a left hip replacement
surgery and Dr. McLean and Nurse Chaffin not scheduling that surgery.
(Id.)
The Court is not Plaintiff’s lawyer and is not obligated to come up
with unpled claims on which Plaintiff may proceed. Plaintiff is a prolific
litigant and has filed upwards of 20 cases in federal court. Plaintiff is well
aware that he is required to actually state the claim in his complaint on
which he wishes to proceed. The Court has not committed a manifest error
of law and no new evidence has been discovered. Therefore, the Court will
deny Plaintiff’s motion for reconsideration and will deny his motion to
amend the complaint as moot.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to alter or amend judgment
(Docket #19) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motion to amend the
complaint (Docket #18) be and the same is hereby DENIED as moot.
Dated at Milwaukee, Wisconsin, this 14th day of April, 2021.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge
If his inmate complaints do not contain any allegations regarding pain
medication, then Plaintiff has not exhausted the required administrative remedies
to support a claim of pain medication denial.
1

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