Jones, Leroy v. Foster, Brian et al

Filing 112

ORDER denying 110 Motion for Reconsideration re 107 Order on Motion for Summary Judgment filed by Leroy S. Jones. Signed by District Judge William M. Conley on 5/9/2024. (voc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LEROY S. JONES,
Plaintiff,

OPINION AND ORDER

v.
19-cv-106-wmc
EMILY STADTMUELLER, NANCY WHITE,
SALAM SYED, NANCY GARCIA,
WENDY KOENIG, CAROL AL-TAHRAWY,
JESSE LANING, JOANIE SULLIVAN,
MELISSA RAMIREZ, CHAD BIRKHOLZ,
TAMI STAEHLER, TRACY THOMPSON, and
JULIE LUDWIG,
Defendants.
Plaintiff Leroy Jones, representing himself, is incarcerated at Kettle Moraine
Correctional Institution (“KMCI”) and seeks reconsideration of the court’s March 7, 2024
opinion granting defendants’ motions for summary judgment.

(Dkt. #110.)

Jones

contends that the court failed to accurately assess and apply the evidence he presented in
support of his claims at summary judgment. For the reasons discussed below, the court
will deny Jones’s motion.

OPINION
Under Federal Rule of Civil Procedure 59(e), a court may reconsider a final
judgment (1) based on newly discovered material evidence or intervening changes in the
controlling law or (2) to correct its own manifest errors of law or fact to avoid unnecessary
appellate procedures. See Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996); Harrington
v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006). A “manifest error” occurs when the

district court commits a “wholesale disregard, misapplication, or failure to recognize
controlling precedent.” Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015) (internal
quotations and citations omitted). However, Rule 59(e) “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, 91 F.3d at 876. Thus, Rule 59(e) relief
is only available if the movant clearly establishes one of the foregoing, two grounds for
relief. Harrington, 433 F.3d at 546 (citing Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119,
1122 n. 3 (7th Cir. 2001)).1
To begin here, Jones asserts that in granting summary judgment to defendants, the
court erred by failing to consider evidence in his medical file, as well as policies and job
descriptions for healthcare providers in Wisconsin Department of Corrections (“DOC”)
facilities. (Dkt. #110, at 2, 8.) As to the latter, he contends that defendants’ failure to
adhere to those policies, together with awareness of an inmate’s serious medical condition,
violates an inmate’s right to a “minimally basic standard of care,” and he also requests
appointment of a neutral expert to “support[] his characterization of his standard of care.”
(Id. at 8.) However, as the court explained in its opinion granting defendants’ motions for

In her opposition to Jones’s motion for reconsideration, defendant Jesse Laning contends that
plaintiff’s motion was untimely under Fed. R. Civ. P. 59(e), pointing to an April 10, 2024 postmark
on the envelope containing his filing. (Dkt. #111, at 2.) Laning correctly notes that any motion
to amend or alter a judgment must be filed no later than 28 days after the entry of the judgment.
However, under the “mailbox rule”, an inmate’s submission is deemed filed with the court when he
gives that submission to prison officials for mailing. Taylor v. Brown, 787 F.3d 851, 858-59 (7th
Cir. 2015). Because Jones certified that he mailed his motion on April 4, 2024 (dkt. #110-2) -- 27
days after judgment was entered on March 8 -- the court will consider his motion timely filed and
need not address Laning’s alternative grounds opposing reconsideration under Fed. R. Civ. P. 60(b).
1

2

summary judgment, violation of a prison policy alone “does not violate the Constitution
or suggest deliberate indifference.” Schroeder v. Sawall, 747 Fed. App’x 429, 431 (7th Cir.
2019) (citing Lewis v. Richards, 107 F.3d 549, 553 n.5 (7th Cir. 1997); Langston v.
Peters,100 F.3d 1235, 1238 (7th Cir. 1996)).
With respect to the former -- the court’s consideration of his medical file -- Jones
has failed to identify any new material evidence or manifest errors of fact as to any
defendant whom he alleges was deliberately indifferent to his knee, back, or finger pain at
Waupun Correctional Institution (“WCI”). Even if, as Jones argues, his November 2, 2015
Health Service Request (“HSR”) did identify knee pain (dkt. #110, at 8), he has not
pointed to any evidence suggesting that defendant Nancy Garcia ever saw that HSR or
that she was deliberately indifferent to his knee pain after referring him to an advanced
care provider to discuss his knee pain in December of 2015. Similarly, as to defendants
Wendy Koenig, Nancy White, Emily Stadtmueller, Carol Al-Tahrawy, Jesse Laning, and
Salam Syed, Jones simply restates his disagreement with the course of treatment they
prescribed him or makes conclusory assertions that they could have further intervened in
his medical care.

Nevertheless, plaintiff is not a medical professional, so he “is not

competent to diagnose himself, and he has no right to choose his own treatment.” Lloyd v.
Moats, 721 Fed. App’x 490, 495 (7th Cir. 2017). Nor can any defendant be held liable
under the Eighth Amendment “if the remedial step was not within [his or her] power.”
Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012).
Jones’s arguments for reviving his claims against the Special Needs Committee
defendants -- Julie Ludwig, Joanie Sullivan, Tami Staehler, Chad Birkholz, and Melissa

3

Ramirez -- and defendant Tracy Thompson, whom he alleges were deliberately indifferent
to his foot and knee pain at KMCI, similarly fail to identify any new material evidence or
errors of fact. Though Jones points to orders for air-cushioned shoes provided by nondefendant Dr. Scott Hoftiezer (which, according to Jones, would have been more effective
than the diabetic shoes for which he had a permanent order) and DOC policies regarding
the expiration dates of those orders as evidence of their deliberate indifference (dkt. #110,
at 12-13), the court already considered these same arguments in its ruling on defendants’
motions to dismiss. (Dkt. #107, at 27-31.) Similarly, though Jones’s claims against
Thompson admittedly presented a closer question at summary judgment, he has not
advanced any new arguments or evidence in support of his argument that she was
deliberately indifferent to his foot pain by failing to refer him to a specialist or, in his
telling, timely schedule him for a follow-up with Dr. Hoftiezer to discuss possible steroid
injections. As the court explained in its previous order, disagreement between two medical
professionals, without more, does not establish an Eighth Amendment violation. Pyles v.
Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
Finally, Jones also seeks reconsideration of the court’s dismissal of his state-law
negligence claims because “covid restrictions and unforeseen delays” have led the statute
of limitations on those claims to run out. (Dkt. #110, at 14.) However, neither reason
points to a “manifest error” of law or fact in the court’s initial ruling, and in any event, the
parties did not ask the court to retain jurisdiction over Jones’s state-law claims if his federal
claims were dismissed. The court also reminds Jones that under Wisconsin law, the statute
of limitations on his state-law negligence claims will have been tolled for the duration of

4

this case. Wis. Stat. § 893.13(2) (“A law limiting the time for commencement of an action
is tolled by the commencement of the action to enforce the cause of action to which the
period of limitation applies. The law limiting the time for commencement of the action is
tolled for the period from the commencement of the action until the final disposition of
the action.”).

ORDER
IT IS ORDERED THAT plaintiff Leroy Jones’s motion for reconsideration
(dkt. #110) is DENIED.
Entered this 9th day of May, 2024.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

5