Edwards v. THURMER et al

Filing 70

ORDER directing plaintiff to submit by 6/18/09 an affidavit or a declaration sworn to under penalty of perjury indicating the date that he submitted his Motion to Recall and Reconsider to prison officials to be mailed. Signed by Chief Judge Barbara B. Crabb on 6/5/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------TERRANCE EDWARDS, P la i n t i f f , v. JER EM Y STANIEC, JOE BEAHM, T R AV IS CAUL, J. HAWKINS, Sgt. ERIC KRUEGER, and BRIAN GREFF, Lt. D efendan ts. --------------------------------------------Judgment was entered in this case on May 12, 2009, after I granted defendants' m o tio n for summary judgment on plaintiff's excessive force claim. Plaintiff has filed a m o ti o n entitled "Motion to Recall and Reconsider" and a separate "Supplement to Recall and Reconsideration Motion." In his motion and supplement, plaintiff argues that it was er r o r to disregard his version of the incident. Among other things, plaintiff notes that, although his proposed findings of fact cited only an unsworn excerpt of his complaint that w as attached to his summary judgment materials, his original complaint was sworn. B efore I consider the merits of his argument, I must determine the date he filed his m otion for reconsideration, which is properly construed as a motion to alter or amend the 1 OR DER 0 8 - cv -3 5 2 - b b c

ju dgm en t under Fed. R. Civ. P. 59. A Rule 59 motion is considered "filed" at the moment it is delivered to prison authorities. Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2 0 0 1) (citing Houston v. Lack, 487 U.S. 266 (1988)). Because I may entertain his Rule 59 m otio n only if it is timely, plaintiff may have until June 18, 2009 in which to file an affidavit or a declaration sworn to under penalty of perjury indicating the date that he submitted his "M otio n to Recall and Reconsider" to prison officials to be mailed.

ORDER IT IS ORDERED that plaintiff may have until June 18, 2009 in which to file an affidav it or a declaration sworn to under penalty of perjury indicating the date that he su bm itted his "Motion to Recall and Reconsider" to prison officials to be mailed. If he fails to file an affidavit or declaration by that time, his "Motion to Recall and Reconsider" will b e considered withdrawn. E n tered this 5t h day of June, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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