Flakes, Joel v. Litscher, Jon et al

Filing 14

ORDER denying 13 Motion for Reconsideration. Signed by Magistrate Judge Stephen L. Crocker on 9/29/2017. (jef),(ps)

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

JOEL SCOTT FLAKES,
Plaintiff

OPINION AND ORDER
16-cv-836-slc

v.
EDWARD F. WALL, et al.,
Defendants.

Pro se plaintiff filed his lawsuit against the prison staff at Stanley Correctional Institution,
claiming that they violated his constitutional rights by discriminating against him and revealing
his sexual orientation, thus subjecting him to a risk of serious harm. On April 14, 2017, I
dismissed this case because Flakes failed to exhaust his administrative remedies as required by
the Prison Litigation Reform Act. In that order, I acknowledged that when I dismissed his other
lawsuit bringing the same claims, Flakes v. Wall, No. 3:15-cv-245-slc (W.D. Wis. March 10,
2016), for his failure exhaust his administrative remedies, I added that “[i]f the conduct of which
plaintiff is complaining is still occurring, then it would not be too late for plaintiff to seek redress
from the institution by filing an inmate complaint (or complaints) clearly identifying the
issue(s).” Id., dkt. 29, at 11. I concluded, however, after reviewing his complaint in this lawsuit,
that dismissal was appropriate it because Flakes sought relief only on the claims described in his
complaint in Case. No. 3:15-cv-245-slc, and not for any subsequent or ongoing conduct. Flakes
now seeks reconsideration of that order, dkt. 13. I am denying reconsideration.

OPINION
A party may file a motion for “reconsideration” under Federal Rule of Civil Procedure
59(e) to alter or amend a judgment.
Rule 59(e) allows a party to direct the district court’s attention to
newly discovered material evidence or a manifest error of law or
fact, and enables the court to correct its own errors and thus avoid
unnecessary appellate procedures. . . . The rule does not provide a
vehicle for a party to undo its own procedural failures, and it
certainly does not allow a party to introduce new evidence or
advance arguments that could and should have been presented to
the district court prior to the judgment.
Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (citations omitted).
Therefore, “[t]o prevail on a Rule 59(e) motion to amend judgment, a party must clearly
establish (1) that the court committed a manifest error of law or fact, or (2) that newly
discovered evidence precluded entry of judgment.” Blue v. Hartford Life & Accident Insurance Co.,
698 F.3d 587, 598 (7th Cir. 2012) (internal quotation and citation omitted). Both pending
motions for reconsideration rely on the first option, but “[a] manifest error is not demonstrated
by the disappointment of the losing party. It is the wholesale disregard, misapplication, or
failure to recognize controlling precedent.” Oto v. Metropolitan Life Insurance Co., 224 F.3d 601,
606 (7th Cir. 2000) (internal quotation and citation omitted).
In dismissing Flakes’ complaint, I concluded that he had not included any additional facts
related to his discrimination or deliberate indifference claims, and that he did not include any
specific allegations of wrongdoing by any of the defendants since 2014 suggesting that the
conduct actually was ongoing. I reiterated the exhaustion requirement that I laid out in Case No.
15-cv-245, and concluded that because Flakes did not seek reconsideration of that decision or

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submit anything in his new complaint that suggested that he had properly exhausted, he had no
claim related to the 2014 incidents.
Flakes’ motion for reconsideration accomplished nothing more. He does not allege
anything that calls into question that my conclusion that he failed to exhaust the claims that
he is trying to bring in this lawsuit. Instead, he insists that the grievances that he did file were
sufficient to fulfill the exhaustion requirement. This isn’t a new contention: I already have
explained to Flakes that the grievances he filed in 2014 did not satisfy the exhaustion
requirement. Accordingly, he has not pointed to any manifest factual or legal error that requires
me to reconsider dismissing this lawsuit.

ORDER
IT IS ORDERED that Plaintiff Joel Flakes’ Motion for Reconsideration, dkt. 13, is
DENIED.

Entered this 29th day of September, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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