Maddox, Cornelius v. Pollard, William et al

Filing 70

Transmission of Notice of Appeal, Docketing Statement, Appeal Information Sheet, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 69 Notice of Appeal (Attachments: # 1 Information sheet, # 2 Docketing Statement, # 3 Order, 7/24/2013, # 4 Judgment, # 5 Order, 10/16/2013, # 6 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CORNELIUS MADDOX,
Plaintiff,

OPINION & ORDER

v.
10-cv-831-wmc
PETER ERICKSEN, MARK S. STUTLEEN,
WENDY BRUNS, DENNIS MOSHER,
MALEAH CUMMINGS, and MARIA
AMARANTE,
Defendants.

On July 24, 2013, the court granted summary judgment against plaintiff Cornelius
Maddox on his claim that defendants, all employees of the Wisconsin Department of
Corrections (“DOC”), violated his First Amendment rights by approving his transfer to
the general population unit of the Wisconsin Secure Program Facility in retaliation for
filing a lawsuit complaining about inadequate dental care at the Green Bay Correctional
Institution.

(Dkt. #63.)

The next day the clerk of the court entered judgment in

defendants’ favor. (Dkt. #64.) Before the court are two motions by Maddox: (1) a
motion for reconsideration (dkt. #65); and (2) a motion for extension of time to file a
notice of appeal and to rescind his Rule 59(e) motion (dkt. #66). Both motions will be
denied.

OPINION
I. Motion for Reconsideration
The Federal Rules of Civil Procedure do not contemplate a “motion for
reconsideration,” but do allow for a motion to alter or amend the judgment pursuant to

Fed. R. Civ. P. 59 (e) if “filed no later than 28 days after entry of the judgment.” Since
Maddox filed his motion exactly 28 days after the entry of judgment against him, the
court will consider it as such. Even so, “a Rule 59(e) motion must clearly establish either
a manifest error of law or fact or must present newly discovered evidence.” LB Credit
Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995); see also Sigsworth v.
City of Aurora, Ill., 487 F.3d 506, 511-12 (7th Cir. 2007). Rule 59(e) “does not allow a
party to introduce new evidence or advance arguments that could or should have been
presented to the district court prior to the judgment.” Popovits v. Circuit City Stores, Inc.,
185 F.3d 726, 729 (7th Cir. 1999) (quotation marks and citation omitted).
The court already considered the facts now reasserted in Maddox’s motion for
reconsideration, including that the record did not permit a finding that defendants had
knowledge of Maddox’s dental care complaint before the transfer recommendation,
although there was evidence of possible knowledge before the transfer decision itself.
(7/24/13 Op. & Order (dkt. #63) 11.) Even assuming the timing of the developments in
Maddox’s dental care complaint aligned in his favor, the court also concluded -consistent with Seventh Circuit caselaw – that proximity in timing alone is not enough
for Maddox’s claim to survive summary judgment. (Id. at 11-12 (citing Andonissamy v.
Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir. 2008) (“mere temporal proximity is not
enough to establish a genuine issue of material fact” (internal quotation omitted)).
On September 9, 2013, Maddox submitted an affidavit averring for the first time
that on October 3, 2008, his social worker Ms. C. Heil told him that she saw the
defendants being served a copy of his civil complaint and that she believed Maddox was
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being retaliated against because of his pursuing civil lawsuits against the Green Bay
officials. (Affidavit of Cornelius Maddox (dkt. #67) ¶¶ 1-6.) The court must reject any
request for reconsideration of its summary judgment opinion based on this motion for at
least two reasons.
inadmissible.

First, the purported new evidence is hearsay and therefore

Second, even assuming his affidavit constituted admissible evidence,

Maddox offers no reason why these “new” factual allegations in his affidavit could not
have been submitted as part of his summary judgment submission. On the contrary, the
affidavit indicates Maddox’s conversation with Ms. Heil took place more than two years
before he filed this lawsuit (dkt. #1) and almost five years before he submitted his brief
in opposition to defendants’ motion for summary judgment (dkt. #60). Accordingly, the
court will deny Maddox’s motion for reconsideration.1

II. Motion for Time to File Notice of Appeal and To Rescind Rule 59(e) Motion
In his second motion, Maddox claims that: (1) he was misinformed by a “prison
litigator” of discovery protocol in this court; and (2) absent this confusion, he would have
proffered additional information as to defendants’ knowledge of his dental care
complaint in further support of his retaliation claim. (Dkt. #66.) Now, with the help of
another “prison litigator,” Maddox wishes to file a Fed. R. Civ. P. 60(b) motion “based
on the evidence presented and discovery request that never took place due to
1

In light of Maddox’s second motion, it appears he may have wished to withdraw his
original Rule 59(e) motion. Because some of the issues raised in his Rule 59(e) motion
touch on his motion for time to file a notice of appeal, the court has nonetheless
considered the motion. Moreover, if plaintiff were to withdraw his motion under Rule
59(e), the time in which he could file a notice of appeal may have lapsed.
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inadvertence of [the original prison litigator’s] inadequate understanding of civil
procedure.” (Id. at 2.) Specifically, Maddox points to his affidavit describing the same
statements attributed to Heil just discussed above. The court rejects this evidence as a
basis for relief under Rule 60, for the same reasons it did under Rule 59(e) as described
above.
With the court’s entry of this order on Maddox’s Rule 59(e) motion, the
thirty-day period of time in which to file a notice of appeal begins to run. Fed. R.
App. P. 4(a)(A). The court sees no basis -- and certainly not one constituting “excusable
neglect or good cause” -- to extend that period of time for appeal to allow Maddox an
opportunity to file a Rule 60 motion. Fed. R. App. P. 4(a)(5). Moreover, a Rule 60
motion will not stop the appeal clock. Fed. R. App. P. 4(a)(A)(vi) (limiting effect on
notice of appeal to Rule 60 motions filed within 28 days of entry of judgment).

ORDER
IT IS ORDERED that:
1) plaintiff Cornelius Maddox’s motion for reconsideration (dkt. #65) is
DENIED; and
2) plaintiff’s motion for extension of time to file a notice of appeal and to rescind
his Rule 59(e) motion (dkt. #66) also is DENIED.
Entered this 16th day of October, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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