United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (DKT. NO. 12) AND GRANTING MOTION FOR LEAVE
TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
plaintiff, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. §1983, alleging that
the defendants violated his civil rights. Dkt. No. 1. On July
26, 2018, the court screened the complaint and dismissed the
case based on the plaintiff's failure to state a claim.
Dkt. No. 10. On August 6, 2018, the plaintiff filed a motion
for reconsideration and a notice of appeal. Dkt. Nos. 12, 13.
The plaintiff also has asked the court to allow him to
proceed with his appeal without prepaying the filing fee.
Dkt. No. 18. The court will deny the plaintiff's motion
for reconsideration and will grant the plaintiff's motion
to proceed on appeal without prepaying the filing fee. The
court is aware that the plaintiff has filed a motion asking
for appointment of a lawyer; the court of appeals will decide
Motion for Reconsideration
federal court may alter or amend a judgment under
Fed.R.Civ.P. 59(e) when there is newly discovered evidence or
where there has been a manifest error of law or fact.
Harrington v. City of Chi., 433 F.3d 542, 546 (7th
Cir. 2006) (citing Bordelon v. Chi. Sch. Reform Bd. of
Trs., 233 F.3d 524, 529 (7th Cir. 2000)). Rule 59(e)
requires that the movant “clearly establish”
either newly discovered evidence or a manifest error of law
or fact. Id. (citing Romo v. Gulf Stream Coach,
Inc., 250 F.3d 1119, 1122 n.3 (7th Cir. 2001)).
court may vacate a judgment under Rule 60(b) for several
reasons, including mistake, excusable neglect, newly
discovered evidence and fraud. “Rule 60(b) relief is an
extraordinary remedy and is granted only in exceptional
circumstances.” Harrington, 433 F.3d at 546
(quoting Karraker v. Rent-A-Center, Inc., 411 F.3d
831, 837 (7th Cir. 2005)).
a court should analyze a motion to reconsider under Rule
59(e) or 60(b) depends on the substance of the motion, not on
the timing or label affixed to it. Obriecht v.
Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (citing
Borrero v. City of Chi., 456 F.3d 698, 701-02 (7th
plaintiff asserts that the court made a legal error, and made
an error of fact in concluding that he received treatment
while incarcerated. These arguments are covered by Rule
59(e). See Obriecht, 517 F.3d at 494.
court may grant a motion to amend a judgment if there is
newly discovered evidence, or an intervening change in the
law, or if the judgment reflects a manifest error of the law.
Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.
1998). 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). Rule 59(e) motions are not vehicles to introduce
new evidence or advance arguments that could or should have
been presented to the district court prior to judgment.
Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.
1996); Rothwell Cotton Co. v. Rosenthal & Co.,
827 F.2d 246, 251 (7th Cir. 1987).
complaint alleged that the defendants did not properly screen
the plaintiff for mental health issues during intake and did
not give him a prerelease mental health plan before he was
released from custody. He asserted that these and other
failures constituted deliberate indifference to his serious
medical needs. He also alleged that because he was released
from prison without having his mental health needs met, he
ended up being committed to the Department of Health Services
after committing a serious crime.
court dismissed the plaintiff's complaint because he
appeared to be trying to sue the defendants for failing to
cure his mental illness. He asserted that if the defendants
had properly screened him at intake, and given him a
pre-release mental health plan, he would not have committed
the offense which resulted in his being committed to the
Department of Health Services. But the Eighth Amendment does
not require prison staff to cure a plaintiff's serious
medical needs. It requires only that the prison staff not
deliberately refuse to treat the inmate's needs while he
is in custody.
plaintiff argues that he was not required to plead every
element of his claim, and that the court's decision
dismissing his complaint wrongly required him to do so. He
notes, for example, that his complaint did not make any
factual allegations regarding defendant DeYoung. Dkt. No. 12
at 3. The plaintiff concedes that his complaint did not make
allegations against DeYoung, but says it was because he
“figur[ed] the court would see the correlation between
DeYoung” and the defendant whom he claims failed to
adequately screen him at intake. Id. The court
agrees that the plaintiff was not required to plead every
element of his claim. But he must make some
allegation against each defendant he names, showing that that
defendant knew of his serious medical need and was
deliberately indifferent to it. The complaint did not contain
plaintiff has not presented the court with any newly
discovered evidence. Nor has he demonstrated that the court
committed a manifest error of law or fact. The court will
deny the plaintiff's Rule 59(e) motion to alter or amend
Motion for Leave to Appeal Without Prepaying the Filing
are three grounds for denying a prisoner appellant's
request to proceed without prepaying the filing fee: the
prisoner has not established indigence, the appeal is in bad
faith or the prisoner has three strikes. See 28
U.S.C. §§ 1915(a)(2)-(3), (g). The court finds that
the plaintiff has established that he is indigent, and the
plaintiff has not accrued ...