United States District Court, E.D. Wisconsin
ERIC S. CONLEY-EAGLEBEAR, Plaintiff,
FRANK MILLER, ROB RASMUSSEN, and KURT WAHLEN, Defendants.
DECISION AND ORDER DENYING PLAINTIFF’S MOTION
TO ALTER OR AMEND JUDGMENT (DKT. NO. 80)
Pamela Pepper United States District Judge
plaintiff, a Wisconsin state prisoner, is representing
himself. He filed this lawsuit under 42 U.S.C §1983,
claiming that defendant City of Racine Police Officer Frank
Miller used excessive force when he shot the plaintiff, that
defendant City of Racine Police Officer Rob Rasmussen
directed or acquiesced in the use of excessive force, and
that defendant Racine Police Chief Kurt Wahlen failed to
properly train his officers. Dkt. No. 8. On February 17,
2016, the court denied the plaintiff’s motion for
summary judgment, and granted the defendants’ motion
for summary judgment. Dkt. No. 75. Judgment was entered on
February 18, 2016. Dkt. No. 76. The plaintiff has filed a
motion to alter or amend judgment pursuant to Federal Rule of
Civil Procedure 59(e).
Standard of Review
59(e) allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present
newly discovered evidence.” Obriecht v.
Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, Ill., 487 F.3d 506,
511-12 (7th Cir. 2007)). A “manifest error” is a
“wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro.
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(citation omitted). Further, “[m]otions under Rule
59(e) cannot be used to present evidence that could have been
presented before judgment was entered.”
Obriecht, 517 F.3d at 494. Whether to grant a motion
to amend judgment “is entrusted to the sound judgment
of the district court.” In re Prince, 85 F.3d
314, 324 (7th Cir. 1996).
plaintiff contends that the court should have given him an
opportunity to properly support his facts instead of omitting
so many facts from Plaintiff’s Proposed Findings of
Fact that failed to cite to the record. Dkt. No. 80 at 2. He
asserts that these omitted facts demonstrate that
“there is a genuine dispute as to material fact
entitling him to judgment as a matter of law.” Dkt. No.
80 at 3.
the plaintiff contends that the court erroneously failed to
consider his allegations that he was shot in the back. Dkt.
No. 80 at 3-4. He also states that the medical records
“absolutely support Plaintiff’s assertion that
his back was facing Miller when Miller shot him twice;
Plaintiff’s ‘side was [not] facing Miller in a
bladed fashion.’” Dkt. No. 80 at 4. The plaintiff
cites to defendant Rasmussen’s statement that
“when defendant Miller shot the plaintiff, he never saw
a firearm in the Plaintiff’s hand, and the
Plaintiff’s back was facing the defendants.” Dkt.
No. 80 at 4. Finally, the plaintiff contends that the court
should not have relied on Helman v. Duhaime, 742
F.3d 760 (7th Cir. 2014). He argues that Helman is
distinguishable because, unlike the suspect in that case (who
was shot by a police officer while reaching for his gun), in
this case Miller and Rasmussen were not on the scene for the
purpose of arresting the plaintiff, because the plaintiff was
not a suspect to a crime when the officers arrived.
response, the defendants contend that the plaintiff has not
met the legal requirements for a motion to alter or amend
judgment under Rule 59(e). According to the defendants, the
plaintiff’s failure to follow federal and local rules
relative to summary judgment motions is not a reason to alter
or amend the court’s judgment. Dkt. No. 82 at 2.
defendants also contend that the court did not commit a
manifest error of law in its consideration of admissible
facts to supports its decision and order. They state that,
contrary to the plaintiff’s contention that the court
should have considered evidence that he was shot in the back
while running from the police, and that the plaintiff had
discarded his gun prior to being shot, the court did
find that the plaintiff was shot in the back, citing evidence
provided by the plaintiff. Dkt. No. 82 at 4. The defendants
further note that the court cited to the plaintiff’s
evidence that the officer observed two entry wounds in his
shoulder and buttock, and that the medical reports state
there were two wounds in the back of his body. Id.
defendants also state that the plaintiff has not provided
evidence that defendant Miller had subjective knowledge that
the plaintiff had discarded his gun at any time before he
shot the plaintiff. Id. Rather, the admissible
evidence supports the fact that defendant Miller saw evidence
that the plaintiff had a gun before shooting the plaintiff.
addition, the defendants contend that the court’s
reliance on Helman was not erroneous, “given
the Plaintiff’s admission that he had a firearm tucked
in his waistband underneath his shirt while walking and being
observed by Defendant Miller, and the barrel of the gun was
located at his knee.” Dkt. No. 82 at 5. According to
The admissible evidence unrefuted by Plaintiff is that during
Defendant Miller’s foot pursuit of Plaintiff, the
Plaintiff made an extremely exaggerated draw motion with his
right hand from his pants and Defendant Miller saw a gun in
Plaintiff’s right hand . . .; and that Defendant Miller
saw the Plaintiff with the gun in his hand, and rotating
toward his direction . . . .
Dkt. No. 82 at 5-6.
Court’s Summary ...