Leiser, Jeffrey v. Richardson, Reed et al

Filing 54

ORDER denying plaintiff Jeffrey Leiser's 51 motion for reconsideration and extension to appeal. Signed by Magistrate Judge Stephen L. Crocker on 5/16/2019. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JEFFREY D. LEISER,
Plaintiff,

OPINION and ORDER

v.

Case No. 16-cv-860-slc

MARIO CANZIANI, et al.,
Defendants.

Pro se plaintiff Jeffrey Leiser proceeded in this lawsuit on First Amendment free speech
and retaliation claims against Stanley Correctional Institution employees Mario Canziani,
Patrick J. Lynch, and Bradley Lundmark. In particular, Leiser claimed that these defendants
violated his free speech rights and retaliated against him when they issued him a conduct report
and punished him for allegedly receiving money for performing legal services. On February 27,
2019, I issued an order granting defendants’ motion for summary judgment, and judgment was
entered in their favor that day.

(Dkt. 49, 50.)

Leiser filed a timely motion seeking

reconsideration of that judgment, as well as an extension of time to file a notice of appeal. For
the reasons that follow, I am denying Leiser’s motion. I will deny his request for an extension
without prejudice.

OPINION
Leiser does not cite to Federal Rule of Civil Procedure 59(e) specifically, but his
arguments suggest that he is seeking to alter or amend the judgment pursuant to this rule. “To
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 Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012)

(internal quotation and citation omitted). A Rule 59(e) motion is not intended as a vehicle to
relitigate matters already disposed of, or to raise novel theories. Federal Deposit Insurance Corp.
v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986). In this context, “manifest error” means
“wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000).
Leiser seeks reconsideration by arguing, for the most part, that I made credibility
determinations to discount several pieces of evidence that he claims support his defense that he
never received money for legal services. Leiser specifically points to: (1) the testimony of two
other prisoners, Worzalla and Galleon, who each testified during the disciplinary hearing that
he had never paid Leiser for legal services; (2) the affidavits from Corbine and Paige, who each
averred that they never paid Leiser for his legal services; and (3) the affidavit of prisoner Kuslits,
who also averred that he never paid Leiser for legal services. Leiser further claims that I ignored
the absence of any direct evidence that Leiser accepted money for his legal services. These
arguments mischaracterize my conclusions, but more importantly, Leiser misapprehends the
issue actually before this court. The question is not whether this court agrees with defendants’
conclusion that the evidence established that Leiser actually had received money for legal
services. The question is whether the defendants had enough evidence to permit them rationally
to conclude that Leiser had received money for legal services. (See 2/27/2019 Order (dkt. 49)
at 10-11.)
I framed the question in this fashion based on Turner v. Safley, 482 U.S. 78 (1987), in
which the Supreme Court held that prison officials may restrict a prisoner’s First Amendment
right to free speech if the restriction is “reasonably related to legitimate penological interests.”
Id. at 87. Applying this standard, I acknowledged Leiser’s position – that defendants were wrong

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in concluding that he was accepting money for legal services – but then framed the operative
question as “did the defendants’ decisions bear a logical relationship to a legitimate penological
interest,” based on “all of the information available” to them at the time. (Id.) I concluded that,
although the defendants did not have smoking gun evidence that Leiser had accepted money for
legal services, the evidence they did have permitted each of them rationally to conclude that
Leiser was accepting money for legal services. Was it the only conclusion they could have
reached on the record before them? No, probably not.

But it was a sufficiently logical

conclusion sufficiently tethered to Stanley’s legitimate penological needs to withstand Leiser’s
First Amendment challenge. Leiser’s arguments in his motion simply rehash his account of the
evidence he presented the conduct report hearing. He has provided no basis for reconsideration.
As for his retaliation claim, Leiser argues that I incorrectly concluded that there was no
evidence of record that would permit a finding that any of the defendants intended to punish him
for filing other lawsuits. Leiser insists that an email from non-defendant Unit Manager Stroudt
provides evidence of retaliatory motive. In that email, Stoudt asked why Leiser’s conduct report
hearing had not taken place yet, stating that she had been “bugging Lundmark and Steinke
about it,” and that she was concerned that they were “going to run short on the extension.” (Pl.
Ex. 100-35 (dkt. 38-35).) Leiser claims that Stoudt’s inquiries were intended to remind Lynch
that Leiser had sued him before. I already had acknowledged that Lynch knew about Leiser’s
prior lawsuits. Leiser’s suggestion that this email highlights any of the named defendant’s wish
to punish him for other lawsuits requires an inferential leap not grounded in any facts. Rather,
the only reasonable inference to draw from this communication is that Stoudt was checking on
the timing of the conduct report hearing. Accordingly, I see no basis to reconsider my finding
that the record is devoid of evidence of retaliatory motive.

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Finally, the heading of Leiser’s motion for reconsideration includes a motion for an
extension of time to appeal, but he does not provided any argument in support of that request.
I’m denying this request without prejudice. It appears that Leiser requested the extension so
that he does not lose his ability to file an appeal while his motion for reconsideration is pending.
However, he does not need an extension, since his time to file a notice of appeal runs from the
entry of the order disposing of his Rule 59(e) motion. See Fed. R. App. 4(4)(A)(v). Accordingly,
I am denying Leiser’s motion for extension without prejudice to Leiser renewing it. In renewing
such a motion, he should refer to Federal Rule of Appellate Procedure 4(a)(5)(A), which permits
the court to “extend the time to file a notice of appeal for a period not to exceed 30 days from
the expiration of the time otherwise prescribed by Rule 4(a),” upon a finding of good cause or
excusable neglect.

ORDER
IT IS ORDERED that plaintiff Jeffrey Leiser’s motion for reconsideration and extension
to appeal (dkt. 51) is DENIED.
Entered this 16th day of May, 2019.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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