United States District Court, W.D. Wisconsin
LOWMORREO A. HARRIS, SR., Plaintiff,
CHARLES DEVENDORF, et al., Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
Fed.R.Civ.P. 59, pro se plaintiff Lowmorreo A.
Harris, Sr., moves a new trial or to alter or amend the
judgment entered by this court on June 28, 2017, after a jury
trial on his claims against prison staff for retaliation.
(Dkt. #187.) For the reasons stated below, that motion will
be denied. Also before the court are Harris's motions for
leave to proceed in forma pauperis on appeal (dkt.
#191) and to waive transcript fees (dkt. #198), both of which
will be granted.
Timeliness of Motion for Reconsideration
first argue that Harris's motion is untimely. Motions for
a new trial or to alter and amend the judgment must be filed
within the 28 days following the entry of judgment.
Fed.R.Civ.P. 59(b)-(e). Here, Harris's motion was filed
on July 31, 2017, 33 days after entry of the June 28, 2017,
judgment. This does not end the matter, however, as the
prison mailbox rule has been applied to Rule 59(e) motions.
See, e.g., Edwards v. United
States, 266 F.3d 756, 758 (7th Cir. 2001) (per
curiam). Harris attempts to invoke this rule by filing a
declaration of mailing (dkt. #199), stating that: he placed
his motion in the institutional mailbox; he does not control
operations at the prison business office; and he is able to
provide a disbursement slip signed by a housing unit sergeant
that proves he mailed his motion on June 26, 2017.
(Id.) While this would mean Harris filed his motion
two days before this court issued its judgment, this
court will assume that Harris meant to indicate he mailed his
motion on July 26, which would have been the last
permissible day for him to do so. Accordingly, Harris's
motion will be considered timely.
Rule 59 Merits
Harris's motion for a new trial or to alter or amend the
judgment falls short is on the merits. Under Rule 59,
“[a] new trial may be granted if the verdict is against
the clear weight of the evidence or the trial was unfair to
the moving party.” Clarett v. Roberts, 657
F.3d 664 (7th Cir. 2011) (citing David v. Caterpillar,
Inc., 324 F.3d 851, 863 (7th Cir. 2003)). “A new
trial should be granted only when the record shows that the
jury's verdict resulted in a miscarriage of justice or
where the verdict, on the record, cries out to be overturned
or shocks [the] conscience.” Davis v. Wisconsin
Dep't of Corr., 445 F.3d 971, 979 (7th Cir. 2006)
(internal quotation marks omitted). “Although the court
examines the evidence to determine whether the jury's
verdict was based on that evidence, the court does not make
credibility determinations or weigh the evidence.”
Whitehead v. Bond, 680 F.3d 919, 925 (7th Cir.
Claim against Officer Waterman
jury did not accept Harris's claim that Officer Waterman
issued him a false conduct report in retaliation for a
complaint made about her to Captain Achterberg. Harris argues
this verdict was against the weight of the evidence because
it did not account for the “smoking gun” of
Harris's written request slip to Captain Achterberg, in
which he purportedly complained about Waterman and accused
her of making false statements about his conduct. (P.'s
Mot. (dkt. #187) 9-10).) At trial, Harris and Waterman
disputed the substance of Harris's claim that Waterman
had thrown some of Harris's legal papers through a trap
in his cell door and withheld others without his consent. In
particular, Harris cross-examined Waterman about a perceived
discrepancy between the request slip and Waterman's
conduct report about Harris's behavior during their
interactions. Harris ultimately appears to dispute whether he
claimed he was denied all of his property. Harris
also argues that the jury did not give sufficient weight to
corroborating testimony from another inmate, Michael Jackson.
However, these credibility determinations were argued before
the jury, and this court has no factual basis to question
their conclusion. See Whitehead, 680 F.3d at 925.
Claim against Financial Specialist Devendorf
alleged that Financial Specialist Devendorf issued him a
false conduct report in retaliation for filing prison
grievances. At trial, Harris argued that Devendorf had
intentionally written Harris a false conduct report
for altering a document. Regardless, there is no basis to
disturb the jury's credibility determination: whether
they believed Devendorf was simply mistaken in believing that
Harris had altered the document, or believed that Harris had
altered it. Harris also points to a mistake made in the
certification of a trust account, which Devendorf testified
that he realized and remedied, but this admission does not
require the jury to find that Devendorf would have reason to
file a false report intentionally.
next argues he was prejudiced by a pretrial delay because:
(1) Sergeant Koran had retired and could not be located; and
(2) the memory of a supporting witness, inmate Michael
Jackson, faded and made him appear less credible. This court
is unaware of authority for setting aside a civil trial
verdict on this basis, especially absent evidence of an
improper purpose for the delay. Also, were there to be a
second trial, it is unlikely that such problems would be