Myles, Samuel v. Gupta, Ravi et al

Filing 148

ORDER denying 141 Motion to Strike Notice of Appeal; denying 142 Motion for Reconsideration. The clerk of court is directed to forward a copy of this order to the Court of Appeals for the Seventh Circuit. Signed by District Judge Barbara B. Crabb on 5/16/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SAMUEL MYLES,

OPINION AND ORDER

Plaintiff,

14-cv-661-bbc

v.
RAVI GUPTA and
UNITED STATES,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Samuel Myles, a prisoner incarcerated at the Federal Correctional Institution
in Milan, Michigan, filed this pro se lawsuit against defendants Ravi Gupta and the United
States in which he alleged that defendants violated his Eighth Amendment rights and the
Federal Tort Claims Act by prescribing a combination of blood pressure drugs that caused
him to faint and break his ankle.

In an order entered on April 22, 2016, I granted

defendant’s motion for summary judgment on the ground that plaintiff failed to create a
genuine issue of material fact with respect to whether defendants breached the applicable
standard of care. After the clerk of court entered judgment in favor of defendants and
dismissed the case, plaintiff filed a notice of appeal. Dkt. #136. On May 2, 2016, plaintiff’s
notice of appeal was forwarded to the Court of Appeals for the Seventh Circuit. Dkt. #138.
I also construed plaintiff’s notice of appeal as a request to proceed in forma pauperis on
appeal, which I denied because plaintiff has filed at least five lawsuits that have been

1

dismissed as frivolous or for failing to state a claim. Dkt. #139.
One week after I forwarded plaintiff’s notice of appeal to the court of appeals,
plaintiff filed a motion to strike his notice of appeal and a motion for reconsideration of my
order denying his request for assistance with the recruitment of counsel. Dkts. ##141, 142.
I am construing plaintiff’s motion to strike and motion for reconsideration as a motion to
alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e). Such a motion
“suspends” the appeal and deprives the court of appeals of jurisdiction until the district court
enters an order disposing of the motion. Advisory Committee Notes to Fed. R. App. P. 4,
1993 Amendment, Note to Paragraph (a)(4), ¶¶ 1-2 (“A notice filed before the filing of one
of the specified motions or after the filing of a motion but before disposition of the motion
is, in effect, suspended until the motion is disposed of, whereupon, the previously filed
notice effective places jurisdiction in the court of appeals.”); Katerinos v. U.S. Dept. of
Treasury, 368 F.3d 733, 738-39 (7th Cir. 2004) (discussing effect of premature notice of
appeal and amendments to Fed. R. App. P. 4); Sultan v. Fenoglio, 775 F.3d 888, 889 (7th
Cir. 2015) (“The court mistakenly asserted that it could not rule on Sultan’s motion [for
reconsideration] because he already had filed a notice of appeal from the dismissal”); Dye
v. Bartow, No. 13-cv-284-bbc, 2013 WL 5295690, at *1 (W.D. Wis. Sept. 19, 2013)
(“Ordinarily, the filing of a notice of appeal divests the district court of its control over those
aspects of the case involved in the appeal. However, where a party files a timely notice of
appeal and a timely Rule 59(e) motion, the notice becomes effective only after the court has
disposed of the Rule 59(e) motion.”) (internal citations and quotations omitted).

2

I have reviewed and am denying plaintiff’s motion for reconsideration. Plaintiff’s
motion for reconsideration simply rehashes the various arguments plaintiff has set forth in
the series of motions he has filed throughout this case regarding his request for assistance
with the recruitment of counsel. These arguments regarding his indigence, his efforts to
retain counsel on his own and the alleged complexity of this case are beside the point. As
I noted in the April 22, 2016 order, I cannot assist plaintiff with the recruitment of counsel
pursuant to 28 U.S.C. § 1915(e)(1) because he has “struck out” and is no longer proceeding
in forma pauperis in this case. Dkt. #131 at 6 (“Because plaintiff can no longer proceed in
forma pauperis under § 1915, he also cannot avail himself of the various benefits of that
statute, including the right to assistance with the recruitment of counsel when the
complexity of a case is beyond his abilities.”). Accordingly, plaintiff’s motion for
reconsideration is denied.
In accordance with the court of appeals’ decision in Katerinos, I am directing the clerk
of court to provide a copy of this order to the court of appeals so that it can “verify that the
judgment is final, that the notice of appeal has become effective and that appellate
jurisdiction has vested.” Katerino, 368 F.3d at 738.

ORDER

IT IS ORDERED that plaintiff Samuel Myles’s motion to strike, dkt. #141, and
motion to reconsider, dkt. #142, are denied. The clerk of court is directed to forward a copy

3

of this order to the Court of Appeals for the Seventh Circuit.
Entered this 16th day of May, 2016.
BY THE COURT:

/s/
__________________________________
BARBARA B. CRABB
District Judge

4