United States District Court, E.D. Wisconsin
DARYISE L. EARL, Plaintiff,
BRIAN FOSTER, et al., Defendants.
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
William C. Griesbach, Chief Judge
March 12, 2015, Plaintiff Daryise Earl filed an action
pursuant to 42 U.S.C. § 1983 alleging that his civil
rights were violated. The court granted the defendants'
motion for summary judgment and dismissed this case on May
26, 2017. Plaintiff filed a motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e) on
the ground that the judgment was based on a manifest error of
law. For the reasons discussed below, Plaintiff's motion
for reconsideration will be denied.
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)). A manifest error is “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). A plaintiff must “clearly establish”
that he is entitled to relief under Rule 59(e).Harrington
v. City of Chicago, 433 F.2d 542, 546 (7th Cir. 2006)
(citing Romo v. Gulf Stream Coach, Inc.,
250 F.3d 1119, 1122 n.3 (7th Cir. 2001)).
identifies no manifest error of law or fact in his motion to
reconsider. First, Plaintiff argues that the court used the
wrong legal standard for his First Amendment retaliation
claim and his Eighth Amendment deliberate indifference claim.
He appears to disagree with the standard for retaliation and
argues that the court should not have considered whether the
defendants could “show by a preponderance of the
evidence that they would have taken the same actions.”
ECF No. 131 at 1. In the court's decision and order, the
court articulated the standard for presenting a retaliation
claim as follows:
To establish a prima facie case of retaliation, plaintiff
must produce evidence that he: (1) engaged in
constitutionally protected speech, (2) suffered a deprivation
likely to deter protected speech; and (3) his protected
speech was a motivating factor in the defendants'
actions. See Kidwell v. Eisenhauer, 679 F.3d 957,
965 (7th Cir. 2012). If plaintiff establishes these three
elements, the burden shifts to the defendants to show by a
preponderance of the evidence that they would have taken the
same action even without any retaliatory motive. Spiegla
v. Hull, 371 F.3d 928, 943 (7th Cir. 2004) (citing
Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 287 (1977)).
ECF No. 129 at 9.
court recognizes that it used a poor choice of words. The
standard on summary judgment, of course, is not whether a
party has met his burden of proof by a preponderance of the
evidence but rather whether there is a genuine dispute of
material fact. Fed.R.Civ.P. 56(c). Yet, here, Plaintiff did
not dispute any facts that suggested Brooks and Faltyski
would have removed Plaintiff from his position even without a
retaliatory motive. As the court stated in its Decision and
Order, after Plaintiff received a six-week “no
work” medical restriction, Brooks recommended removing
him from his job as a bowl cook so that the kitchen could
fill the position to meet its institutional and operational
needs. ECF No. 129 at 6. Lieutenant Faltyski approved the
recommendation. Id. All parties agree that Plaintiff
had a knee injury and was unable to stand for long periods of
time without pain. Id. at 10. His job as a morning
bowl cook required Plaintiff to be on his feet to prepare,
cook, and serve the breakfast and noon meal, and to start
preparations for the evening meal. In addition, a bowl cook
job requires more skill and knowledge than an entry level
kitchen job, and during Plaintiff's initial three-week
absence, other bowl cooks had to fill Plaintiff's
position and did not get their scheduled days off. Plaintiff
did not dispute that his job could not be vacant for six more
weeks given that his absence had already affected the
kitchen's efficiency. Id. Because Plaintiff did
not present a material issue of fact challenging that the
defendants would have taken the same action without any
retaliatory motive, the court determined the defendants were
entitled to summary judgment as a matter of law. In sum,
Plaintiff has not established that the court committed a
manifest error of law requiring reconsideration.
his challenge to the court's application of the Eighth
Amendment deliberate indifference standard, Plaintiff appears
to believe that the court was required to identify a
“penological interest” in defendant Karl's
decision to deny Plaintiff's request for a sick day.
However, Plaintiff has no basis in law to assert that the
court used the wrong standard. Again, as the court noted in
its Decision and Order, deliberate indifference contains both
an objective and a subjective element. Id. at 12. A
plaintiff must show that he had a medical condition that was
sufficiently serious and that the defendants had knowledge of
the serious medical condition and disregarded an excessive
risk to the inmate's health or safety. Id.
(citing Gutierrez v. Peters, 111 F.3d 1364, 1369
(7th Cir. 1997); Roe v. Elyea, 631 F.3d 843, 857
(7th Cir. 2011)). The court applied this standard in
analyzing Plaintiff's deliberate indifference claim and
ultimately granted the defendants' motion for summary
judgment. While Plaintiff reargues his original positions and
raises several points of disagreement with the court's
analysis, he has not shown that reconsideration is warranted.
also attempts to challenge the amount he was paid when he was
unable to work. He asserts that the Department of Corrections
has implemented an inmate compensation plan that allows for
an inmate to receive regular pay, rather than sick pay, when
he is unable to work due to a work-related injury. This
argument is a nonstarter because Plaintiff concedes that he
did receive back-pay at his regular rate while he was unable
to work due to his knee injury.
Plaintiff contends that the court ignored two motions: a
motion to depose Gilbert Haight, a medical expert, as well as
a motion for sanctions regarding the defendants'
“fraudulent filings designed to conceal Brooks'
knowledge of the complaint Earl filed.” ECF No. 131 at
4, 7. Yet, the court addressed every motion Plaintiff filed.
The court denied Plaintiff's motion to appoint an
independent medical expert because it could not justify the
cost of an expert given the facts of the case. ECF No. 107.
Further, Plaintiff never filed a motion for sanctions against
the defendants. In short, Plaintiff has not offered a proper
basis for the court to alter or amend the judgment.
Therefore, his motion for reconsideration (ECF No. 131) is