Burns v. Tapio et al
ORDER signed by Judge Brett H Ludwig on 11/14/23 that Defendants' summary judgment motion 24 is GRANTED and this action is DISMISSED. (cc: all counsel and mailed to pro se party)(jad)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 22-cv-0572-bhl
NATHAN TAPIO, et al.,
DECISION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiff Lengeorge Burns, an inmate at the Waupun Correctional Institution, is
representing himself in this 42 U.S.C. §1983 action. He is proceeding on Eighth Amendment
claims based on allegations that Defendants Nathan Tapio and Mary Moore delayed treatment for
his wrist/hand, interfering with specialists’ ability to diagnose and relieve his wrist/hand pain. He
also is proceeding on a claim that they were deliberately indifferent to his pain while he waited for
treatment. Finally, Burns is proceeding on a deliberate indifference claim against Defendant
Robert Weinman based on allegations that he ignored Burns’ complaints that he was not receiving
adequate care from Moore. On April 24, 2023, Defendants moved for summary judgment. For
the reasons explained below, the Court will grant their motion and dismiss this case.
At the relevant time, Burns was incarcerated at Waupun, where Tapio worked as a nurse
practitioner, Moore worked as an advanced practice nurse prescriber (APNP), and Weinman
worked as the health services manager. On August 10, 2017, Burns was seen by a nurse for
complaints of hand pain. Burns received acetaminophen, a rubber band for hand exercises, daily
ice packs, an ace wrap, and a brace. A couple of weeks later, on August 24, 2017, he was again
examined by a nurse who noted a minor lump in his palm. She checked the box on her report
requesting that a provider review his chart to determine whether an x-ray was needed. That same
day, Tapio ordered an x-ray. Burns hand was x-rayed a few days later, on August 28, 2017; the
results were normal and showed no fractures or abnormalities. Dkt. Nos. 25 and 37 at ¶¶1-4; 2731.
Nearly two months later, on October 18, 2017, Tapio examined Burns for complaints of
headaches and hand pain. For Burns’ hand pain, Tapio ordered a wrist brace, placed an order for
Lidocaine 4% topical cream, and scheduled a follow-up appointment for eight weeks. Burns also
continued to receive acetaminophen during this time. Unfortunately, the wrist brace was not issued
to Burns until January 10, 2018, but Tapio asserts that he was not aware of or involved with the
delay in issuing the brace. Tapio explains that once he places an order, others in the health services
unit implement the order. After Burns received the brace, Tapio extended his order for three
months. Dkt. Nos. 25 and 37 at ¶¶32-37.
Tapio next examined Burns on February 14, 2018. Burns complained of chronic joint pain,
chronic left knee pain, left wrist/hand pain, and headaches. Tapio placed an order for Burns to see
an offsite orthopedic specialist for his knee and wrist/hand pain. He also ordered a physical therapy
evaluation for his left hand, ice as needed, a topical pain gel, an electromyography (EMG), and a
follow-up appointment in three weeks. Two months later, on April 13, 2018, Tapio placed an
order for a topical pain gel, lidocaine cream, and gabapentin for Burns’ occipital neuralgia and
headaches. Tapio asserts that he did not provide any further care to Burns prior to November 6,
2018, when he ceased being employed at Waupun. Dkt. Nos. 25 and 37 at ¶¶38-40.
According to Burns’ medical records, offsite orthopedist Dr. Eric Nelson (who is not a
Defendant) evaluated Burns for his left-hand complaints on July 9, 2018. Dr. Nelson did not
observe any trauma and noted that the x-ray was negative, but he was concerned about a possible
fracture of the hook of the hamate bone, so he recommended a CT scan of Burns’ left hand. Dr.
Cheryl Jeanpierre (who is not a Defendant), ordered a CT scan of Burns’ left hand the next day,
and the CT scan was scheduled for November 7, 2018. Less than a week after Dr. Jeanpierre’s
order, on July 16, 2018, Burns was evaluated by offsite specialist Dr. Xian-feng Gu (who is not a
Defendant) for an evaluation and EMG. Dr. Gu noted mild to moderate left carpal tunnel and mild
neuropathy symptoms. Dkt. Nos. 25 and 37 at ¶¶41-42.
From Burns’ medical records, it appears that Dr. Jeanpierre learned that the CT scan
scheduled for November 2018 did not occur, so on December 11, 2018, she reordered the CT scan.
It is not clear why, but a nurse did not complete the form required to schedule the CT scan for
several additional months, until April 29, 2019. The form was then sent to the scheduler, and the
CT scan was scheduled for June 5, 2019. This appointment was cancelled, although, again, it is
unclear why or who cancelled it. Neither Tapio nor Moore were working at Waupun at this time.
On June 21, 2019, another form was completed and sent to the scheduler. The CT scan was
scheduled for July 11, 2019. Dkt. Nos. 25 and 37 at ¶¶45-50.
On July 11, 2019, Burns had a CT scan of his left hand. The CT scan showed no evidence
of fracture or evidence of old fracture. In addition, “no distinct etiology for pain” was found, so
the radiologist noted on his report, “Consider MRI.” A couple of weeks later, on July 24, 2019,
Burns was seen by APNP Robert Martin (who is not a Defendant). Burns reported that, two years
prior, he had a left-hand hamate fracture that caused shooting nerve pain throughout his fingers.
Martin ordered a nerve conduction study on Burns’ hand. Burns had an EMG of his left hand on
September 23, 2019. Dkt. Nos. 25 and 37 at ¶¶53-55; Dkt. No. 28-1 at 83.
Moore, who started working at Waupun in July 2019, appears to have examined Burns for
the first time on October 7, 2019. At that time, the results of his most recent EMG were not
available. Moore noted that the first EMG showed mild to moderate carpal tunnel syndrome and
mild ulnar neuropathy.
She also reviewed Burns’ medication history and fine-tuned his
prescriptions based on his reports of effectiveness and side-effects. Finally, she instructed Burns
on wrist exercises he should do hourly and ordered a larger wrist brace because Burns reported
that the one he had was too small. Dkt. Nos. 25 and 37 at ¶56.
Two months later, on December 9, 2019, Burns had an appointment with Dr. Gu to follow
up on the September 2019 EMG. The results were largely the same as his previous EMG—a
showing of mild left carpal tunnel syndrome and ulnar neuropathy. Burns reported that weakness
and numbness in his left hand were worsening and that he had pain in his left wrist. Dr. Gu
recommended that Burns be seen by Dr. Nelson again (he had last seen Dr. Nelson in July 2018).
Dkt. Nos. 25 and 37 at ¶59.
About a week later, on December 16, 2019, Moore cancelled Burns’ gabapentin
prescription, which she had prescribed two months earlier based on Burns’ report that it had
previously been effective in relieving his pain. According to medication logs, Burns had not
missed a dose in the prior two months, yet a blood test showed no detectable level of gabapentin
in his system. Given the suspected misuse, Moore cancelled the prescription and informed Burns
that they could talk about an alternative medication. At the time, Burns also had lidocaine topical
and acetaminophen for pain. Dkt. Nos. 25 and 37 at ¶¶61-62.
About four months later, at Burns’ request, Moore examined him and placed an order for
Burns to see a neurologist for his headaches. A little more than a month after that, on June 11,
2020, Burns asked to be seen in his cell. He noted that he was in pain and stated that nothing
Moore was doing was helping. He was specifically concerned about his gout and stomach pain.
Moore saw Burns in his cell and ordered a foot basin and Epson salt, renewed the order for ice,
and noted that orthopedic and neurology appointments were scheduled, as were a CT scan of his
head and an eye appointment. About a week later, on June 19, 2020, after further review of Burns’
records, Moore increased his propranolol dose to help with his headaches. She again confirmed
that he had an orthopedic appointment scheduled for his carpal tunnel syndrome. Burns asked
Moore to “stop with the medications.” He apparently believed Moore was not doing enough to
figure out the cause of his problems and was instead (mis)focused on prescribing new medication
or claiming he was abusing his medication. Dkt. Nos. 25 and 37 at ¶¶65-72.
On June 26, 2020, Burns’ offsite orthopedic appointment was cancelled because of the
COVID lockdown. Burns had a telemed visit with Dr. Gu’s physician assistant on July 10, 2020.
He asserted that Burns should follow up with Dr. Nelson (the orthopedist) as Dr. Gu had
recommended in December. Burns was seen by an APNP in orthopedics at Waupun Memorial
Hospital on September 22, 2020 for evaluation and treatment of his knee and hand pain. The
APNP noted that she did not see that Burns had received a CT scan as had been previously
recommended. She noted that a fracture involving the hook of the hamate would not heal, so she
ordered another CT scan of Burns’ left hand to confirm her suspicion that he had such a fracture.
About three months later, on December 16, 2020, Burns had a CT scan of his left hand, the results
of which were the same as his first CT scan, i.e., no acute fracture or dislocation and unremarkable
soft tissue. Dkt. Nos. 25 and 37 at ¶¶73-79; Dkt. No. 28-1 at 66.
On June 10, 2021, Burns had another EMG, followed by an evaluation by Dr. Gu, who
reported that the EMG study showed 1) mild left ulnar neuropathy at wrist level which, compared
to the EMG study in 2019, showed a slight progression and 2) mild left median sensory neuropathy
which was new compared to the EMG study in 2019. During the following months, Burns wrote
to health services complaining that he was still in pain. Moore responded to his complaints,
detailing his treatments, medications, diagnostic tests, and evaluations. She also adjusted his pain
medication, increasing his dosage of Celebrex. On August 19, 2021, Moore placed an order for
Burns to be seen by the orthopedist, who had a telemed visit with Burns on August 30, 2021. Dr.
Nelson reviewed the many diagnostic tests Burns had received and discussed treatment options
with him. Burns stated that he wanted to proceed with a carpal tunnel release surgery. Burns was
informed that, “[t]here is no guarantee of pain relief following end of healing with this procedure.”
Dkt. Nos. 25 and 37 at ¶¶80-97.
In mid-December 2021, after Burns complained to Weinman, Moore again reviewed
Burns’ medical records and consulted with Dr. Jeanpierre. In her response to Burns, Moore noted
that the EMG results indicated his carpal tunnel had improved from “mild to moderate” to “mild.”
She explained that the reference to a “slight progression” dealt with his ulnar neuropathy, which
is a different nerve than the carpal tunnel, and in any event, that too was mild. She also informed
him that he was scheduled for left carpal tunnel release surgery. In January 2022, Moore ordered
Burns a splint to help take pressure off the nerve. And, on March 10, 2022, Burns had carpal
tunnel release surgery. Dkt. Nos. 25 and 37 at ¶¶100-105.
Summary judgment is appropriate when the moving party shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). “Material facts” are those under the applicable substantive law that “might
affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. All reasonable inferences are construed in favor of
the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit evidentiary materials that set forth
specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932,
937 (7th Cir. 2010) (citations omitted). “The nonmoving party must do more than simply show
that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is properly
entered against a party “who fails to make a showing sufficient to establish the existence of an
element essential to the party’s case, and on which that party will bear the burden of proof at trial.”
Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotations omitted).
Burns acknowledges that he has a complicated medical history, including chronic
headaches, occipital neuralgia, kidney disease, gout, stomach pain, and issues with his cervical
spine, left knee, right foot, and left wrist/hand. But Burns clarifies that this lawsuit is not about
the extensive care he has received for his many conditions; it is only about the care he received (or
did not receive) for his wrist/hand pain. Specifically, Burns asserts that Tapio and Moore violated
his constitutional rights when they delayed ordering necessary diagnostic tests and failed to follow
the recommendations of offsite specialists, thereby delaying his carpal tunnel release surgery and
unnecessarily prolonging his pain. Burns also asserts that Weinman, as the health services
manager, violated his constitutional rights when he ignored Burns’ many complaints about the
breakdown in his and Moore’s relationship.
To prevail on a deliberate indifference claim under the Eighth Amendment, a plaintiff must
prove that prison officials intentionally disregarded a known, objectively serious medical condition
that posed an excessive risk to the plaintiff’s health. Perez v. Fenoglio, 792 F.3d 768, 777 (7th
Cir. 2015) (citations omitted). Inmates “can establish deliberate indifference by showing that
medical personnel persisted with a course of treatment they knew to be ineffective,” including by
failing to conduct necessary tests, ignoring specific treatment requests from the inmate, and
persisting in offering weak medication in the face of repeated protests that the medication is not
working. Goodloe v. Sood, 947 F.3d 1026, 1031 (7th Cir. 2020) (citations omitted). An
“inexplicable delay in responding to an inmate’s serious medical condition” can also reflect
deliberate indifference. That is especially so if the delay exacerbates an inmate’s medical
condition or unnecessarily prolongs suffering.” Id.
Defendants argue that, under this law, they are entitled to summary judgment. They first
argue that Burns’ wrist/hand pain does not qualify as an objectively serious medical condition.
This argument does not carry the day, at least at summary judgment. The record shows that
Defendants and others undertook extensive efforts to treat Burns’ wrist/hand injury, including
providing multiple forms of pain medication, diagnostic testing, and even surgery. This evidence
is sufficient for a reasonable jury to find that Burns’ wrist/hand pain was objectively serious. This
same evidence, however, confirms Defendants’ alternative argument--that their repeated efforts to
treat Burns preclude a finding that they were deliberately indifferent. Indeed, given the record of
Defendants’ extensive actions and efforts, no jury could reasonably conclude that they violated
Burns’ Eighth Amendment rights.
1. No jury could reasonably conclude that Tapio was deliberately indifferent to Burns’
Burns was under Tapio’s care for complaints of wrist/hand pain for just over a year, starting
in August 2017 and continuing through November 6, 2018, when Tapio left Waupun to work at a
different institution. The day Tapio first became aware of Burns’ complaints via a nursing record,
he ordered an x-ray, which was completed within a week and showed no abnormalities. When
Burns’ complaints of pain continued, Tapio ordered a wrist brace, topical pain ointment, and
continued Burns’ prescription for acetaminophen. Burns did not immediately receive the brace,
but Tapio was not responsible for the delay. Tapio explains that once he places an order, others in
the health services unit are responsible for fulfilling the order. Burns’ complaints of pain
continued, so on February 14, 2018, Tapio placed an order for Burns to see an offsite orthopedist.
He also ordered physical therapy, ice, topical pain gel, and an EMG.
The orthopedist and EMG appointments did not occur until July 2018, but, again, Tapio
was not responsible for the delay. The record confirms that advanced care providers do not
schedule offsite appointments. Dkt. No. 25 at ¶22. And the health services unit has limited control
over scheduling as the appointments are scheduled according to the offsite provider’s availability
along with the institution’s transportation availability. Id. at ¶23. Tapio explains that staff have
no control over the calendars of offsite providers, so they must take whatever available
appointments are offered. Id. at ¶24. Burns’ complaints of pain continued while he waited for the
appointments, so Tapio placed an order for a topical pain gel, lidocaine cream, and gabapentin.
The orthopedist recommended a CT scan to assess whether Burns had a fracture in his
hand. Burns makes much of the fact that Tapio did not order the CT scan, but he ignores the fact
that another provider placed the order the day after it was recommended, so there was no need for
Tapio to also place an order. The CT scan was originally scheduled for the day after Tapio stopped
working at Waupun.
On this record, no jury could reasonably conclude that Tapio was deliberately indifferent
to Burns’ hand pain. Tapio began with conservative measures such as a brace and topical
ointments, and when those did not address Burns’ complaints, he tried new interventions such as
ice and other pain medications. When it was clear he was unable to diagnose the source of Burns’
pain, he referred Burns to specialists for further assessments. While there was some delay in Burns
treatment, the record shows that Tapio was not responsible for the delays and therefore cannot be
liable. See, e.g., Resel v Fox, 26 F. App’x 572, 576 (7th Cir. 2001) (holding that a person who is
not personally responsible for a delay is not accountable for the conduct of his coworkers and/or
Burns highlights that after he met with the specialists, Tapio never discussed their findings
with him, which violated Department policies. But §1983 “protects plaintiffs from constitutional
violations, not violations of state laws or, in this case, departmental regulations . . . .” Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). Even if Burns’ allegation is correct, it is far from
clear how Burns would have been harmed by Tapio’s failure to summarize appointments that
Burns himself attended. In any event, the only substantive recommendation from the specialists
was that Burns have a CT scan, and as noted, a provider ordered the CT scan the day after it was
recommended. In short, given the totality of the care that Tapio provided to Burns, no jury could
reasonably conclude that he was deliberately indifferent to Burns’ wrist/hand pain. Tapio is
therefore entitled to summary judgment.
2. No jury could reasonably conclude that Moore was deliberately indifferent to Burns’
Moore began working at Waupun in July 2019. She first examined Burns three months
later, in October 2019. By that time, Burns had already been evaluated by an offsite orthopedist
and had two EMGs and a CT scan, which showed no evidence of a current or prior fracture and
“no distinct etiology for pain.” Although the radiologist suggested an MRI on his report, neither
of the specialists recommended one. In any event, the CT scan had occurred several months before
Moore began caring for Burns. Burns continued to complain of pain, so Moore adjusted his
medications based on his reports of effectiveness and side effects. She also instructed him on wrist
exercises and ordered a larger brace for him. In December 2019, the specialist who performed the
EMG recommended that Burns see the orthopedist again. Burns highlights that, despite this
recommendation, he did not see the orthopedist until twenty months later, in August 2021. But
Burns ignores Moore’s multiple efforts to address his condition during that time. Burns also fails
to acknowledge that the reasons for the delay were outside of Moore’s control.
Admittedly, it is not clear who placed the order or when the order was placed for Burns to
see the orthopedist, but Moore informed Burns twice in June 2020 that an appointment with the
orthopedist was scheduled. Unfortunately, that appointment was cancelled on June 26, 2020
because of an institution lockdown in response to COVID. Moore does not bear responsibility for
that cancellation. Burns then had a telemed visit with the assistant of the specialist who performed
the EMG in July 2020. Burns highlights that the assistant suggested Burns be examined by the
orthopedist as had already been recommended, but he ignores that this appointment occurred after
Burns’ appointment with the orthopedist should have happened.
Again, Moore was not
responsible for the cancellation of Burns’ appointment with the orthopedist.
About two months later, in September 2020, Burns had an appointment with an APNP in
orthopedics. The APNP observed that the orthopedist had previously asked for a CT scan of
Burns’ hand, but she did not see that one had already occurred. See Dkt. No. 28-1 at 64. The
APNP was wrong; Burns had a CT scan in July 2019. Id. at 83. According to Burns, the APNP
placed the order for another CT scan herself, and he received the CT scan in December 2020.
Moore is not responsible for the delay caused by the APNP overlooking the July 2019 CT scan.
And, in any event, as was the case with the first CT scan, the December 2020 CT scan showed no
fracture, and the soft tissue was unremarkable.
Burns asserts that, once a fracture was ruled out, Moore should have immediately pursued
scheduling a carpel tunnel release surgery, as this was the next step recommended by the APNP.
But Burns mischaracterizes the APNP’s report. The APNP suspected that Burns had a fracture.
She stated that if her suspicion was confirmed by the CT scan, Burns should be referred to a hand
surgeon. She noted that she and Burns had also discussed a carpal tunnel release and that she had
given Burns an informational handout for him to review in the event the CT scan showed no
fracture. The APNP did not recommend a carpal tunnel release in the event no fracture was
detected. See Dkt. No. 28-1 at 66. Moore cannot have been deliberately indifferent for delaying
a surgery that had not yet been recommended.
Moore had no responsibility for when appointments with specialists were scheduled,
whether appointments were cancelled, or others’ errors in reviewing Burns’ records, but the record
confirms she continued her efforts to address Burns’ pain. She maintained his prescription for
pain gel and acetaminophen, adjusted his medications based on his reports of effectiveness and
side-effects, and referred him for yet another EMG to assess the source of his pain and whether his
condition was changing.
In August 2021, Moore placed an order for Burns to see the orthopedist, who was able to
examine Burns later that month via a telemed visit. The orthopedist observed that “the CT scan
was negative for any evidence of fracture involving the hook of the hamate, and frankly any other
significant orthopedic pathology as well.” Dkt. No. 28-1 at 53. The orthopedist discussed with
Burns the option of a carpal tunnel release surgery, but he did not recommend that one be
performed or opine that such a surgery was necessary to relieve Burns’ pain. In fact, he cautioned
Burns that “[t]here is no guarantee of pain relief following end of healing with this procedure.” Id.
Burns opted to pursue the surgery, which after institution approval took place on March 10, 2022.
No jury could conclude from this chronology that Moore deliberately delayed Burns’
treatment, ignored specialists’ recommendations, or ignored his complaints of pain. The delay
Burns experienced in scheduling appointments with specialists and diagnostic tests may have been
frustrating to him, but he offers no evidence from which a jury could conclude that Moore was
responsible for those delays. As noted, advanced care providers are not responsible for scheduling
appointments, and they have no control over the schedules of the institution or the offsite providers.
The evidence shows that Moore and others repeatedly placed orders for appointments with
specialists, diagnostic tests, and ultimately surgery. Moore is not liable simply because those
orders were not immediately implemented by others or because Burns preferred a faster resolution.
With regard to addressing Burns’ complaints of pain, the record shows that Moore
continually adjusted his medications and repeatedly offered other support such as braces and
exercises. Burns highlights that Moore denied his request for ice, which he says was one of the
few treatments that helped relieve his pain. But, while there is a dispute regarding why Moore
refused to give Burns ice, that dispute is not material. Burns would have preferred ice, but
prisoners are not entitled to their preferred treatment, only to adequate care. See Johnson v.
Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). Moore refused to provide Burns with ice, but she
instructed him to use cold and warm washcloth compresses instead. Also, as the Seventh Circuit
has long instructed, when considering whether a provider’s care evidences deliberate indifference,
the Court must look at the totality of an inmate’s medical care; isolated instances of neglect will
not support a finding of deliberate indifference. Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir.
1997). Given the frequent care and attention Burns received from Moore, including medications,
referrals to specialists, diagnostic tests, physical therapy, and medical devices, no jury could
reasonably conclude that Moore was deliberately indifferent to Burns’ wrist/hand pain, so she is
entitled to summary judgment.
3. No jury could reasonably conclude that Weinman was deliberately indifferent to
Burns’ complaints about Moore’s treatment.
Burns asserts that Weinman violated his rights because he failed to address his many letters
complaining about the breakdown in his relationship with Moore. Prison administrators can rely
on medical personnel unless they have “reason to believe (or actual knowledge) that prison doctors
or their assistants are mistreating (or not treating) a prisoner.” Stewart v. Wexford Health Sources,
Inc., 14 4th 757, 767 (7th Cir. 2021) (citations omitted). Burns has provided no evidence that
Weinman turned a blind eye to mistreatment. Weinman responded to Burns’ letters or forwarded
them to others to respond. And, as explained above, no jury could reasonably conclude that Moore
was deliberately indifferent to Burns’ wrist/hand pain. Given that the record shows that Moore
provided constitutionally adequate care, Weinman cannot be liable for failing to intervene in her
care. He also is entitled to summary judgment.
IT IS THEREFORE ORDERED that Defendants’ summary judgment motion (Dkt. No.
24) is GRANTED and this action is DISMISSED. The Clerk of Court will enter judgment
Dated at Milwaukee, Wisconsin on November 14, 2023.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
This order and the judgment to follow are final. Plaintiff may appeal this Court’s decision to the Court
of Appeals for the Seventh Circuit by filing in this Court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely requests
an extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
Under certain circumstances, a party may ask this Court to alter or amend its judgment under Federal
Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of judgment. The Court cannot extend
these deadlines. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.
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