Lindsey, Leighton v. Clark, T. et al

Filing 189

ORDER denying plaintiff Leighton D. Lindsey's 187 motion asking the court to order his lawyer to send him the affidavit of Titus Henderson. Signed by District Judge Barbara B. Crabb on 12/05/2014. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LEIGHTON D. LINDSEY,
OPINION AND ORDER
Plaintiff,
12-cv-923-bbc
v.
TANIA CLARK, DAVID GARDNER,
ROBERT HABLE, TROY HERMANS,
STACEY HOEM, MARY MILLER,
SARAH MASON, SCOTT RUBIN ASCH,
JENNIFER ANDERSON, JERRY SWEENEY,
ANDRES NAGLE, DEANNA THEIN,
MARLA WALTERS, KEVIN TRIPP,
JEFFREY KNUPPLE, BURTON COX,
JONI SHANNON-SHARPE,
BRIAN KOOL and MELANIE HARPER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Summary judgment was entered in favor of defendants in this case on September 24,
2014. On October 22, 2014, plaintiff Leighton D. Lindsey appealed that decision to the
Court of Appeals for the Seventh Circuit. Now plaintiff has filed a motion in which he
alleges that his former lawyer is withholding a witness’s affidavit and asks the court to order
the lawyer to send the affidavit to plaintiff. Dkt. #187.
As an initial matter, it is unclear whether this court has jurisdiction to consider
plaintiff’s motion. Although the district court retains jurisdiction over issues that do not
affect the appeal, Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995), it is not clear
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whether this motion falls under that category because plaintiff intends to use the affidavit
to supplement his appeal brief. Further, the appellate record may be corrected or modified
only with respect to material omissions or misstatements in the record that were made “by
error or accident.” Fed. R. App. P. 10(e)(2). (Plaintiff may also challenge the record as
failing to “truly disclose what occurred in the district court,” Fed. R. App. P. 10(e)(1), but
plaintiff has not done that.) “All other questions as to the form and content of the record
must be presented to the court of appeals.” Fed. R. App. P. 10(e)(3). In this case, plaintiff
wishes to add a new affidavit that was never before the court, which appears to be a question
for the court of appeals only.
In any event, plaintiff has not explained the relevance of this document. Plaintiff says
that he requires the affidavit to supplement his appeal brief “because it is essential for me
to assert the basis of my appeal surrounding the content of the bad faith affidavit which may
have greatly harmed how things were handled by attorney Dutch in my lawsuit.” Dkt.
#187, at 1. It is not clear whether he means that the affidavit establishes his lawyer’s bad
faith or that the affidavit caused his lawyer to decide to act in bad faith with respect to
plaintiff’s case. Either way, plaintiff does not explain why information about his lawyer’s
“bad faith” or allegedly poor performance is relevant to his appeal. Civil litigants such as
plaintiff are not entitled to lawyers by right, so failures by their counsel are not grounds for
altering the outcome in their lawsuits. Bell v. Eastman Kodak Co., 214 F.3d 798, 802 (7th
Cir. 2000) (“[P]laintiff is arguing ineffective assistance of counsel, and while that is a ground
for a collateral attack on a criminal judgment, . . . it is not a basis for collateral attack on a

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civil one.”) (citation omitted). Because plaintiff has not shown that he could use the
affidavit for any permissible purpose on appeal, I am denying his motion.

ORDER
IT IS ORDERED that plaintiff Leighton D. Lindsey’s motion asking the court to
order his lawyer to send the affidavit of Titus Henderson, dkt. #187, is DENIED.

Entered this 5th day of December, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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