United States District Court, E.D. Wisconsin
ANTHONY B. STELTER, Plaintiff,
ANTHONY MELI, RANDY VANDE SLUNT, BELINDA SCHRUBBE, PAULA TIRUVEECULA, JAY CERNY, and CORY SABISH, Defendants.
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (DKT. NO. 62)
PAMELA PEPPER United States District Judge
March 30, 2016, the court entered an order granting the
defendants' motion for summary judgment and dismissing
this case. Dkt. No. 60. The court entered judgment the same
day. Dkt. No. 61. Two weeks later, the plaintiff filed a
motion for reconsideration under Federal Rule of Civil
Procedure 59(e). Dkt. No. 62.
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, 487 F.3d 506, 511-12
(7th Cir. 2007)). "Motions under Rule 59(e) cannot be
used to present evidence that could have been presented
before judgment was entered." Id. 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).
Burney v. Thorn Americas, Inc., the court explained
what a party needs to show to demonstrate that the court
committed a manifest error of law.
A manifest error of law is . . . narrow, applying only to
egregious legal errors. Appeal, not reconsideration, is the
time to deal with the majority of legal errors; therefore, a
party may not reargue what the court has already rejected.
Similarly, summary judgment, not reconsideration, is the time
for a party's best legal argument; therefore, a party may
not make arguments that it could have raised in the original
summary judgment motion. In other words, manifest legal error
is the narrow path between the Skylla of arguments already
raised and the Kharybdis of arguments that could have been
made. See Homer, The Odyssey, gook 12, ll.
75-140 (Robert Fitzgerald trans. 1961).
Manifest errors are errors so obvious that no additional
explanation is needed or possible. For example, if a court on
summary judgment refused to draw a reasonable inference in
favor of a nonmoving party, the court's error would be
manifest: no explanation of the error would be necessary or
possible (besides stating that the court violated the rules
of summary judgment).
Burney v. Thorn Americas, Inc., 970 F.Supp. 668, 671
(E.D. Wis. 1997) (some citations omitted).
motion, the plaintiff asks the court to reverse its summary
judgment decision with regard to defendants Cerney and Vande
Slunt. Id. at 5. In its decision, the court found
that the plaintiff had conceded that he never complained to
Cerney about his concerns about the lack of proper safety
equipment. Dkt. No. 60 at 28-29. The court also rejected the
plaintiff's argument that Cerney must have known that
microcrystalline silica (“MCS”) was present in
the body shop, and that the plaintiff wasn't wearing a
protective mask or respirator. Id. at 29. The court
found that because Cerney's job was security, not safety,
the plaintiff could only assume that Cerney knew about the
workplace safety issues he raised. Id. at 29-30. The
court found no evidence that Cerney was deliberately
indifferent, even if it were to assume that the plaintiff had
been exposed to a danger. Id. at 30-31.
regard to Vande Slunt, the court again found no evidence that
the plaintiff ever had complained to Vande Slunt about the
lack of safety equipment, and no evidence that it was Vande
Slunt's job to provide such equipment. Id. at
31. The court rejected the plaintiff's claim that Vande
Slunt didn't properly train him regarding safety
precautions; that was not Vande Slunte's job.
Id. at 31-32. The court found no evidence that Vande
Slunt knew that blade coolant could cause health risks or
that the plaintiff could come into contact with it.
Id. at 32.
asking the court to reconsider its decision, the plaintiff
first indicates that the court erred by failing to
“fully apply” the plaintiff's verified
amended complaint. Dkt. No. 62 at 1. He states that the
“verified” complaint “satisfies requirement
of affidavit for summary judgment pursuant to
§1746.” Id. The court believes that the
plaintiff is referring to 28 U.S.C. §1746. That statute
provides that in any situation in which a party must submit a
sworn declaration, verification or affidavit, the party may
meet that requirement by providing an unsworn
declaration, verification or affidavit if it is in his
writing, dated, and subscribed to under penalty of perjury
“in substantially the following form: . . . ‘I
declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on
(date). (Signature)'.” The court thinks that the
plaintiff is arguing that the court should have treated his
amended complaint, dated October 24, 2014, as an unsworn oath
under 28 U.S.C. §1746.
argument does not demonstrate a manifest error of law. It is
true that the plaintiff included the §1746 language at
the end of his amended complaint. Dkt. No. 22 at 11. Even
accepting all of the allegations in that complaint (or
unsworn declaration and verification) as true, the complaint
does not contain the evidence that the court found missing in
its order ruling on the summary judgment. The unsworn
declaration/verification/complaint contains allegations, but
contains no evidence or proof that defendants Cerney and
Vande Slunt knew the things the plaintiff alleges that they
must have known.
the plaintiff argues that his unsworn
declaration/verification/complaint was served on the
defendants. Dkt. No. 62 at 1. He argues that the complaint
“told [the defendants] of the need for proper safety
equipment.” Id. at 1-2. This argument does not
demonstrate manifest error of law. In order to survive
summary judgment, the plaintiff needed to present the court
with evidence that at the time of the events he described
in the complaint (the summer of 2013 through the summer
of 2014), the defendants knew of the danger he alleged but
were deliberately indifferent to it. The plaintiff signed his
unsworn verification/complaint on October 24, 2014-some five
months or so after the events he described in the
complaint. Dkt. No. 22 at 11. The unsworn
verification/complaint could not have put the defendants on
notice in 2013 and the summer of 2014 of the need for safety
equipment, because the plaintiff did not create it until
plaintiff states that “[d]efendants failure to provide
proper safety equipment, even after being served, may be
argued to show deliberate indifference.” Id.
at 2. In support of this assertion, he cites Williams v.
Griffin, 952 F.2d 820 (4th Cir. 1991). That case states
that “once prison officials become aware of a problem
with prison conditions, they cannot simply ignore the
problem, but should take corrective action when
warranted.” Id. at 826. The court does not
disagree with this proposition, even though it is not bound
by this decision. But the plaintiff filed his lawsuit in July
2014-two months or so after the facts he alleged in
the original complaint. He filed the amended complaint (the
unsworn verification) in October 2014-five months
after the facts he alleged in that complaint. If, as
the plaintiff argues, it was his unsworn verification-his
amended complaint-that put the defendants on notice of his
alleged exposure to the dangers of MSC and coolant, they
could not have been deliberately indifferent to those dangers
until after July 2014, or after October
2014. But neither complaint alleges that defendants Cerny and
Vande Slunt were deliberately indifferent after those dates;
both complaints allege that the deliberate indifference
happened between the summer of 2013 and the summer of 2014,
and the plaintiff has not provided any proof that these two
defendants were aware of the alleged dangers during that time
plaintiff claims there is a genuine dispute as to a material
fact regarding when the defendants had notice of the need for
proper safety equipment. Dkt. No. 62 at 4-5. He argues that
the defendants knew about the need for safety equipment prior
to his injury and ...