United States District Court, E.D. Wisconsin
WILLIE C. SIMPSON, Plaintiff,
JON E. LITSCHER, SCOTT ECKSTEIN, JOHN KIND, CAPTAIN SCHULTZ, LT. ELSINGER, LT. VAHLAHAN, SGT. KOELLER, SGT. MENNING, SGT. ROZMARYNOSKI, SGT. HERT, C.O. BRUNNER, C.O. GRABOWSKI, C.O. BEBO, C.O. BONNIN, C.O. MEYER, C.O. DELFOSSE, C.O. WEYCKER, C.O. TREML, C.O. DIEDRICK, C.O. PEOTTER, C.O. POTTS, C.O. VANDEVELDEN, C.O. SCHEMECK, C.O. NEMETZ, C.O. REYES, C.O. GUERRERO, C.O. LEWIS, C.O. YANG, C.O. HEFFERNAN, C.O. ROBEHHAGEN, J. PERTTU, C.O. PETER BAUGH, C.O. AVERY, C.O. BRUSO, C.O. TURCK, and JOHN DOES, Defendants.
Stadtmueller U.S. District Judge.
April 25, 2017, the Court screened Plaintiff's complaint
and determined that it was factually frivolous. (Docket #14).
Accordingly, pursuant to the Prison Litigation Reform Act, 28
U.S.C. § 1915(g), the Court dismissed this action with
prejudice and assessed Plaintiff a strike. See
(Docket #14 and #15). Plaintiff now moves to alter or amend
the judgment pursuant to Federal Rule of Civil Procedure
59(e). (Docket #16).
59(e) empowers a court to alter or amend a judgment on motion
by a party. Fed.R.Civ.P. 59(e). The party seeking relief
under this Rule must establish “a manifest error of law
or present newly discovered evidence.” Obriecht v.
Raemisch, 517 F.3d 489, 494 (7th Cir. 2008).
“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 a judgment “is entrusted to the sound judgment of
the district court, ” In re Prince, 85 F.3d
314, 324 (7th Cir. 1996), but the movant must first
“clearly establish” his right to relief, Romo
v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th
another branch of this Court recently noted, a
“manifest error of law” must be
“egregious” to warrant relief under this Rule.
Stelter v. Meli, Case No. 14-cv-904-pp, 2017 WL
663546, at *1 (E.D. Wis. Feb. 17, 2017). “Appeal, not
reconsideration, is the time to deal with the majority of
legal errors, ” and so only “manifest errors. .
.so obvious that no additional explanation is needed or
possible” are proper subjects of a Rule 59 motion.
Burney v. Thorn Americas, Inc., 970 F.Supp. 668, 671
(E.D. Wis. 1997). Such error “is not demonstrated by
the disappointment of the losing party” but instead
“the ‘wholesale disregard, misapplication, or
failure to recognize controlling precedent.'”
Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000) (quoting Sedrak v. Callahan, 987 F.Supp.
1063, 1069 (N.D. Ill. 1997)).
motion presents no more than his disagreement with the
Court's legal conclusions. This is not a proper basis for
granting relief under Rule 59(e). First, Plaintiff claims
that the Court “overlooked facts in the complaint
identifying a systemwide prison policy authorizing prison
guard defendants discretion to deny Plaintiff medication and
food.” (Docket #16 at 1-3). This is incorrect for two
reasons. First, nothing in Plaintiff's complaint suggests
that he seeks relief for a prison-wide policy permitting
correctional officers to deny him food and medicine.
Plaintiff's claims are rooted in individual liability for
distinct instances of constitutional violations. See
(Docket #1 at 3-4). He nowhere posits a Monell
theory based on unconstitutional prison policies. See
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(1978). Plaintiff cannot amend his factual allegations by way
of a Rule 59(e) motion in order to avoid
the Court did not ignore Plaintiff's allegations in this
regard. Instead, considering his allegations of a paranoid
conspiracy against the backdrop of the plausibility pleading
regime and his prior frivolous litigation, the Court
concluded that his factual allegations were clearly baseless.
(Docket #14 at 9-11); Cooney v. Rossiter, 583 F.3d
967, 971 (7th Cir. 2009); Walton v. Walker, 364 F.
App'x 256, 257 (7th Cir. 2010). Thus, the Court
considered Plaintiff's pleaded facts but was obliged
under the relevant legal standards to reject
Plaintiff attacks the Court's application of the
plausibility standard to his claims, arguing that the Court
failed to pay his allegations proper deference. (Docket #16
at 2-3). He contends that his complaint should have been
dismissed only if he could prove “no set of
facts” entitling him to relief. Id. at 3. But
this is, firstly, the wrong standard, as explained in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561
(2007), because it sets the pleading bar too low. Secondly,
following the plausibility pleading regime first established
in Twombly, Seventh Circuit cases like
Cooney and Walton dictate that the Court
apply a more stringent plausibility bar to its review of
allegations like Plaintiff's. To ignore this precedent
would have been its own manifest error of law. See
Oto, 224 F.3d at 606. In sum, because Plaintiff's
arguments fall well short of “clearly
establish[ing]” that Rule 59(e) relief is warranted,
Romo, 250 F.3d at 1122 n.3, the Court will deny the
IT IS ORDERED that Plaintiff's motion to alter or amend
the Court's April 25, 2017 judgment (Docket #16) be and
the same is hereby DENIED.
In construing pro se filings
generously, the Court is required to consider what grounds
for post-judgment relief might be appropriate, regardless of
the authorizing Rule the litigant actually cited. See
Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008).
Because Plaintiff identifies only purported legal errors the
Court committed, Rule 59 is the appropriate starting point
for his motion, and other rules, like Rule 60(b), are not.
See id.; Fed.R.Civ.P. 60(b).
In his motion, Plaintiff tries to
elaborate on the theory behind his claims, but to no avail.
He argues that he is subject to a back-of-cell restriction
when food or medicine is delivered. (Docket #16 at 4). This
gives guards an opportunity to dump his food and medicine on
the floor. Id. at 5. When he refuses to comply with
the back-of-cell restriction in order to keep these items off
the floor, guards simply deny him the food and medicine.
Id.; see also (Docket #17-1 at 1-17)
(Plaintiff's exhibits purporting to substantiate these
This explanation does not affect the Court's
screening analysis. First, none of these new factual
allegations are contained in his complaint, and no amount of
generous inference could have put them there. Second,
assuming these things are true, which the Court need not do
in the present posture, Plaintiff still does not answer the
Court's finding that his allegations are frivolous and
therefore subject to dismissal under the PLRA. See
(Docket #14 at 10-11).
Plaintiff contends that the Court
should not have put much weight behind the Seventh
Circuit's recent issuance of a Mack bar against
him, (Docket #14 at 2, 10), noting that he has filed a
petition for writ of certiorari to the Supreme Court, (Docket
#16 at 6); (Docket #17-1 at 18-36). But simply stating that
the Mack bar may be subject to the Supreme
Court's discretionary review does little to call the
Court of Appeals' conclusions into question. The