Cose, Roger v. Schrubbe, Belinda et al

Filing 83

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 81 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Order, 4/9/18, # 4 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ROGER ALLEN COSE,
Plaintiff,
v.
MARY GORSKE and CHARLES LARSON,

ORDER
14-cv-540-jdp

Defendants.
Pro se plaintiff and prisoner Roger Allen Cose has filed a motion to alter or amend the
judgment under Rule 59(e) of the Federal Rules of Civil Procedure. Dkt. 66. For the reasons
stated below, I will deny the motion.
Cose raised various claims against defendants Charles Larson (a physician) and Mary
Gorske (a nurse) related to their alleged failure to provide adequate treatment for his fractured
fibula, in violation of the Eighth Amendment. I granted defendants’ motion for summary
judgment because no reasonable jury could find that defendants consciously refused to provide
reasonable treatment. I also denied Cose’s motions for sanctions because he failed to show that
defendants had engaged in any misconduct.
In his opening brief in support of his Rule 59 motion, Cose focuses on issues related to
his sanctions motions, alleging that “newly discovered evidence” shows that some of the
documents included in the medical records defendants provided relate to another prisoner. As
an initial matter, Cose admits that he has possessed the “new” evidence since November 2016,
more than a year before the court decided the sanctions and summary judgment motions. “A
party may not introduce evidence or make arguments in a Rule 59 motion that could or should
have been presented to the court prior to judgment,” United States v. 47 West 644 Route 38,

Maple Park, Illinois, 190 F.3d 781, 783 (7th Cir. 1999), which is reason alone to deny Cose’s
motion.
Regardless, the evidence Cose cites does not show that defendants engaged in litigation
misconduct or violated his rights. Assuming that Cose’s allegations are true, they might show
that there are errors in some of his medical records. But he cites no evidence that defendants or
their counsel are responsible for the errors or that the errors are connected in any way to the
medical decisions at issue in this case.
In his reply brief, which is more than three times longer that his opening brief, Cose
contends for the first time that the summary judgment opinion includes various legal errors. A
party may not raise new issues in a reply brief, Casna v. City of Loves Park, 574 F.3d 420, 427
(7th Cir. 2009), which, again, is a sufficient reason to reject his arguments.
In any event, Cose’s arguments fail on the merits as well. Some of his arguments are
simply repeats of those he raised in his summary judgment briefs. His other arguments are
factually unsupported or are irrelevant to the issues decided in the summary judgment decision.
For example, Cose alleges that his conditioned worsened as a result of delays in his treatment.
But that is irrelevant because I did not grant summary judgment on the ground that Cose failed
to show harm. Rather, Cose lost because he failed to adduce evidence that defendants
intentionally failed to provide reasonable care. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996)
(“[A] defendant's inadvertent error, negligence or even ordinary malpractice is insufficient to
rise to the level of an Eighth Amendment constitutional violation.”). Because Cose still fails to
cite any evidence that would allow a reasonable jury to find that defendants violated the Eighth
Amendment, I will deny his Rule 59 motion.

2

ORDER
IT IS ORDERED that plaintiff Roger Allen Cose’s motion to alter or amend the
judgment under Rule 59(e), Dkt. 66, is DENIED.
Entered April 9, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

3