United States District Court, E.D. Wisconsin
MICHAEL R. COOPER, Plaintiff,
LADONNA JONES, et al., Defendants.
DENYING PLAINTIFF'S MOTION TO RECONSIDER (DKT NO. 13),
DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE (DKT. NO.
23), DENYING PLAINTIFF'S MOTION FOR ORDER FOR PROPOSED
AMENDED PLEADING (DKT. NO. 24) AND GRANTING DEFENDANTS'
MOTION FOR AN EXTENSION OF TIME TO FILE OPPOSITION BRIEF
(DKT. NO. 31)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
November 7, 2018, Magistrate Judge William E. Duffin, the
judge assigned to this case at the time, screened the
plaintiff's amended complaint and allowed him to proceed
on two claims-a claim against defendant Ladonna Jones
(previously identified as L. Johnson) for allegedly
retaliating against the plaintiff for filing a grievance, and
a claim against Doe defendants (Milwaukee County correctional
staff) for withholding his mail in violation of the First
Amendment. Dkt. No. 12. The court did not allow him to
proceed on claims related to mail that unknown officers lost
or misplaced, because negligence is not actionable under 42
U.S.C. §1983. The plaintiff since has filed a motion
asking the court to reconsider that decision. Dkt. No. 13.
He's also filed two motions asking for leave to amend his
pleadings. Dkt. Nos. 23, 24. Finally, the defendants have
requested an extension of time to file their brief in
opposition to the plaintiff's motion for summary
judgment. Dkt. No. 31.
Motion for Reconsideration
the plaintiff does not cite a rule in support of his motion
for reconsideration, there are two rules that parties
generally use to ask courts to re-visit previous decisions.
Fed.R.Civ.P. 59(e) allows a party to file a motion to alter
or amend a judgment within twenty-eight days of the court
entering judgment. Rule 60(b) allows a court to grant relief
from a final judgment for a specific set of reasons, within a
“reasonable time” after entry of judgment.
plaintiff filed his motion seven days after the court issued
the screening order, so it was timely under Rule 59(e).
“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 alter or amend
a judgment “is entrusted to the sound judgment of the
district court.” In re Prince, 85 F.3d 314,
324 (7th Cir. 1996).
plaintiff's motion does not present newly-discovered
evidence. This means that, under Rule 59(e), he is entitled
to relief only if he can demonstrate that the court's
rulings constituted a manifest error of law. A
“manifest error of law” “is not
demonstrated by the disappointment of the losing party. It is
the ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.'” Oto v.
Metropolitan Life Ins. Co., 224 F.2d 601, 606 (7th Cir.
2000) (quoting Sedrak v. Callahan, 987 F.Supp. 1063,
1069 (N.D. Ill. 1997)).
plaintiff argues that the court should allow him to proceed
on a First Amendment claim for not receiving legal mail
because the fact that an empty envelope from the public
defender's office was found in an officer's desk
shows more than negligence. He insists that the simple fact
that legal mail came to the jail, but that he didn't
receive it, shows that the defendants deliberately chose not
to give him the mail and that they covered it up by failing
to inform him that he'd even received a letter. He argues
that the simple fact that he did not receive the content of
the envelope shows that his First Amendment rights were
Duffin concluded-and this court agrees-that the allegations
in the complaint with respect to lost mail amounted to
allegations of negligence. In his amended complaint, the
plaintiff alleged that a correctional officer was ordered to
search for his mail after the plaintiff filed a grievance.
Dkt. No. 9 at 3. The officer found only an empty envelope
from the public defender's office- the contents are still
missing. Id. Nothing about these allegations
suggests intentional or knowing action on any defendant's
part. Perhaps there never was anything in the envelope to
begin with-maybe the public defender's office neglected
to put the document in the envelope. Perhaps someone at the
jail thought they had passed the letter on to the plaintiff
when they hadn't. Perhaps a staff member accidentally
delivered the mail to the wrong inmate. Perhaps the letter
fell behind a desk and no one noticed. All of these
situations would be unfortunate-inmates, just like any other
citizens, should get their mail, and inmates especially
should receive their legal mail. But all the above situations
would constitute negligence, not an intentional
violation of the plaintiff's First Amendment rights. The
plaintiff has not alleged any facts that show that the
defendants intentionally lost or took his mail.
Motions for Leave to File Amended Pleadings
same day, the court received from the plaintiff two motions,
asking the court to allow him to amend his pleadings. In the
first motion, he states that he would like to add new
information about defendant Jones and add the name of a
potential witness. Dkt. No. 23. He attached to the motion
three exhibits relating to a disciplinary disposition. In the
second filing, the lays out the additional facts he wants to
add and states he would like to add a procedural due process
claim against defendant Jones. Dkt. No. 24. He also indicates
that he wants to change the name of a witness he'd
referenced in the original complaint. Id. at 3.
court will deny the motions. Civil Local Rule 15 requires
that a party seeking to amend a pleading include the proposed
amended pleading with his motion to amend. The plaintiff did
not attach a proposed amended complaint to either of his
motions. Further, some of the information the plaintiff wants
to add isn't necessary. For example, plaintiffs
aren't required to list in their complaints the names of
witnesses who may have observed the events they describe. A
complaint lays out for the court and the defendants who the
plaintiff believes violated his rights, how he believes they
did so, when they did so, where they did so and, if he thinks
he knows, why they did so. There comes a time in a lawsuit
where parties must disclose the names of possible witnesses,
but they don't have to do it in the complaint.
plaintiff believes he needs to amend his complaint to add a
claim that he didn't bring in the original complaint, he
must file a motion for leave to amend. He must attach to that
motion a copy of his proposed amended complaint. He must use
the court's form complaint (available on the court's
web site, www.wied.uscourts.gov/representing
-yourself, under “Forms for Pro Se Litigants”).
He must write the word “Amended” in front of the
word “Complaint” at the top of the first page. He
must list the name of every defendant he wants to sue at the
top of the first page. He must include all the claims he
wants to bring; he can't refer the court or the
defendants back to the original complaint. The amended
complaint-if he files one-takes the place of the original
complaint, so it must be complete in itself.
court is not saying that it will allow the plaintiff to amend
his complaint. It simply is telling him the appropriate
process to use. If he files a motion, along with a proposed
amended complaint, the court will consider whether to grant
it. The plaintiff also should be aware that if the court
allows him to amend his complaint, it will slow the case
down; the court will give the defendants an opportunity to
file an answer to the amended complaint, and depending on how