United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO
SET ASIDE JUDGMENT AND MOTION TO AMEND JUDGMENT (DKT. NO. 71)
AND DENYING PLAINTIFF'S MOTION FOR STIPULATION (DKT. NO.
PAMELA PEPPER United States District Judge.
September 30, 2016, the court entered an order granting the
defendants' motion to dismiss the plaintiff's
retaliation claim, and granting the defendants' motion
for summary judgment (arguing that he did not exhaust his
claims with regard to his Eighth and Fourteenth amendment
claims regarding staff members spreading information about a
sexual assault the plaintiff reported). Dkt. No. 69. Three
days later, the court entered judgment, dismissing the case.
Dkt. No. 70. Since then, the plaintiff has filed a motion to
set aside judgment and motion to amend judgment, dkt. no. 71,
as well as a motion for a stipulation, dkt. no. 72.
plaintiff brings his motion to set aside judgment and motion
to amend judgment under both Federal Rules of Civil Procedure
59(e) and 60(b). Dkt. No. 71 at 1. He does not challenge the
court's dismissal of his retaliation claim. Rather, he
argues that, as to the court's conclusion that he did not
exhaust his administrative remedies, he followed all the
administrative remedies that were available to him.
Id. He says that his declaration in support of an
amended complaint mapped out how the Department of
Corrections' administrative procedures “are not
allowing” him to fully exhaust his administrative
remedies, ” id., an argument he makes for the
first time since he filed this case two and a half years ago.
The plaintiff also filed a declaration describing various
events that took place in 2015 and 2016-after he
filed his complaint. Dkt. No. 73 at 4.
substance of a motion, not the timing or its title,
determines whether a court should analyze the motion under
Rule 59(e) or 60(b). Obriecht v. Raemisch, 517 F.3d
489, 493 (7th Cir. 2008) (citing Borrero v. City of
Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006)). Rule
59(e) allows the court to alter or amend a judgment
“only if the petitioner can demonstrate a manifest
error of law or present newly discovered evidence."
Id. at 494 (7th Cir. 2008) (citing Sigsworth v.
City of Aurora, 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).
“Manifest errors are errors so obvious that no
additional explanation is needed or possible.”
Burney v. Thorn Americas, Inc., 970 F.Supp. 668, 671
(E.D. Wis. 1997). A party seeking to alter or amend the
judgment under Rule 59(e) must file his motion no later than
twenty-eight days after the court enters judgment. The
plaintiff filed this motion three days after the court
entered judgment, so it is timely under Rule 59(e).
60(b) allows the court to vacate a judgment for several
reasons including mistake, excusable neglect, newly
discovered evidence, and fraud. See Fed.R.Civ.P.
60(b). The court must balance the competing policies of
deciding a case on its merits with the desire to achieve
finality in litigation, i.e., res judicata.
See Wright, Miller & Kane, Federal Practice
and Procedure § 2857 (1995). Relief under 60(b) is
an “extraordinary remedy and is granted only in
exceptional circumstances.” Karraker v.
Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005).
A party must file a Rule 60(b) motion “within a
reasonable time, ” but within a year after entry of
judgment. Again, the plaintiff's motion is timely under
either rule, the plaintiff's motion for reconsideration
fails. His brief motion does not identify any manifest error
of law that the court has committed, and he did not present
any newly discovered evidence that would undermine the
court's conclusion that he failed to exhaust his
administrative remedies before filing this case. Nor has he
identified any evidence of mistake, excusable neglect, newly
discovered evidence or fraud.
the plaintiff's ten-page declaration and twenty-six pages
of attachments appear designed to convince the court that he
has been trying to exhaust his remedies throughout the
pendency of this case. See Dkt. No. 73. He appears
to assert that into 2016 and 2016-the two years following the
date he filed his complaint-he continued to try to exhaust
his remedies. While it is not clear, it appears that perhaps
the plaintiff thought he could not exhaust his remedies
because certain documents in his case were confidential.
plaintiff must exhaust his remedies before filing
suit. 42 U.S.C. §1997e(a); Dixon v. Page, 291
F.3d 485, 488 (7th Cir. 2002). By asking the court to take
into account actions he took to exhaust in 2015 and 2016,
after he filed this lawsuit in 2014, he essentially
admits that he had not fully exhausted those remedies before
he filed his complaint in this case. If the plaintiff
believes that he now has fully exhausted claims, he may file
a new complaint, and pursue those now-exhausted claims in a
new case. He may not pursue those post-complaint claims in
this closed case.
the plaintiff has not met either the Rule 59(e) or Rule 60(b)
standard, the court will deny his motion to set aside the
judgment and amend his complaint.
court now turns to the plaintiff's Motion for
Stipulation. Dkt. No. 72. In this motion, the plaintiff asks
that any mention of his sexual assault in any ruling stored
on any database “be stipulated to “assault like
crime” and that any mention of a rape kit be referred
to as “medical testing.” Id. The
plaintiff references an earlier motion for preliminary
injunction and temporary restraining order he filed, and
suggests that those documents support his motion. The
defendants did not respond to this motion, but the court will
deny it. The plaintiff presents no justification for the
court to edit its orders or documents filed by the parties.
If the plaintiff had a basis for asking the court or opposing
counsel to avoid using certain language, he should have made
that request long ago.
court DENIES the plaintiffs Motion to Set Aside Judgment and
Motion to Amend Judgment. Dkt. No. 71. The court also DENIES
the plaintiffs motion for stipulation. Dkt. No. 72.
 In the event that the plaintiff
decides to file a new case, the court reminds the plaintiff
that prisoners who file §1983 cases against government
officials when representing themselves must use the
court's form ...