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Smith v. Foster

United States District Court, E.D. Wisconsin

December 13, 2017

DERRICK L. SMITH, Plaintiff,
v.
BRIAN FOSTER, et al., Defendants.

         DECISION AND ORDER DENYING THE PLAINTIFF'S MOTIONS FOR RECONSIDERATION (DKT. NOS. 130, 140 AND 148), MOTIONS FOR LEAVE TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NOS. 134 AND 145), MOTIONS TO CLARIFY (DKT. NOS. 143 AND 150), MOTION FOR LEAVE TO FILE EXCESS PAGES (DKT. NO. 147), AND MOTIONS TO APPOINT COUNSEL (DKT. NOS. 152 AND 157)

          HON. PAMELA PEPPER, United States District Judge

         On October 12, 2017, the court granted the defendants' motion for summary judgment and dismissed the case. Dkt. No. 128. The court entered judgment in favor of the defendants that same day. Dkt. No. 129.

         On November 1, 2017, the plaintiff filed a motion for reconsideration. Dkt. No. 130. Two weeks later, before the court had issued a decision on that motion, the plaintiff filed a notice of appeal. Dkt. No. 133. He also filed a motion for leave to appeal without prepayment of the filing fee. Dkt. No. 134.

         The same day, the Court of Appeals for the Seventh Circuit ordered the plaintiff to pay the full $505 filing fee no later than November 28, 2017. Dkt. No. 139. It explained that several federal courts had dismissed more than three of the plaintiff's cases on the grounds that the cases were frivolous, malicious, or failed to state a claim. Id. As a result, the Seventh Circuit declined to allow the plaintiff to appeal without having to pay the filing fee. Id.

         About a week later, the plaintiff filed a motion asking the court whether it had considered his motion for reconsideration, which the court had received less than three weeks earlier. Dkt. No. 140. He then filed, in quick succession, a motion to clarify Rule 58, dkt. no. 143, another motion for leave to appeal without prepayment of the filing fee, dkt. no. 145, a motion for leave to file excess pages, dkt. no. 147, a motion for order, dkt. no. 148, a motion to clarify, dkt. no. 150, a motion to appoint counsel, dkt. no. 152, and another motion to appoint counsel, dkt. no. 157.

         1. Motions for Reconsideration, Dkt. Nos. 130, 140 and 148

         “The filing of an appeal . . . deprive[s] the district court of jurisdiction over the case.” Boyko v. Anderson, 185 F.3d 672, 674 (7th Cir. 1999). In other words, “[j]urisdiction is either all in one court or all in the other.” Id. This rule prevents one court from stepping on the toes of the other, and it saves time and resources. Id.

         There is an exception to that rule. Rule 57 of the Circuit Rules of the United States Court of Appeals for the Seventh Circuit states that if, while an appeal is pending, a party files a motion under Fed.R.Civ.P. 60(a) or 60(b) or “any other rule that permits the modification of a final judgment, ” that party should ask the district court whether it is inclined to grant the motion. If the district court is inclined to grant the motion, the Seventh Circuit will remand the case to the district court to modify the judgment.

         The plaintiff has filed two motions for reconsideration and a motion for an order ruling on those motions. Dkt. Nos. 130, 140 and 148. The court is not inclined to grant the plaintiff's motions for reconsideration. “Rule 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). 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).

         The plaintiff does not meet the standard for the court to alter or amend its judgment under Rule 59(e). The plaintiff has not presented any new evidence, and he has not alleged that this court committed a manifest error of law. His motions to reconsider present the same arguments he presented before the court granted summary judgment-arguments about missing legal work, which the court has addressed more than once during the case. The court understands that the plaintiff disagrees with its decision to grant summary judgment in favor of the defendants, but the fact that a plaintiff disagrees with a court's ruling is not a basis for that court to grant a motion to reconsider. That is what appeals are for.

         2. Motions for Leave to Appeal without Prepayment of the Filing Fee, Dkt. Nos. 134 and 145

         The Seventh Circuit already has decided that the plaintiff may not proceed on appeal without paying the filing fee, and it has explained to the plaintiff why he cannot do so. Dkt. No. 139. This court does not have the authority to reverse the Seventh Circuit's decision. The court will deny the plaintiff's motions for the reasons stated in the Seventh Circuit's decision.

         3. Motions to Clarify Rule 58, ...


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