United States District Court, E.D. Wisconsin
ORDER DECLINING TO RULE ON PLAINTIFF'S MOTION FOR
RECONSIDERATION (DKT. NO. 92) AND GRANTING PLAINTIFF'S
MOTION TO APPEAL WITHOUT PREPAYING THE FILING FEE (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
March 11, 2019, the court granted the defendants' motion
for summary judgment, dismissed the complaint and entered
judgment. Dkt. Nos. 85, 86. About two weeks later, the
plaintiff filed a notice of appeal, and about three weeks
after that, he filed a motion for reconsideration. Dkt. Nos.
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).
[T]he district court and the court of appeals do not share
jurisdiction over the same case. Jurisdiction is either all
in one court or all in the other. This rule is necessary to
prevent one court's stepping on the toes of the other,
which would waste judicial time as well as forcing the
parties to proceed in two courts in the same case at the same
Id. (citations omitted).
other words, once the case goes to the court of appeals
(which this case has), the district court does not have
jurisdiction to rule on motions the party files in this
court. There are limited exceptions to this rule: Circuit
Rule 57 of the United States Court of Appeals for the Seventh
Circuit states that if during the pendency of an appeal, a
party files a motion under Federal Rule of Civil Procedure
60(a) or 60(b), Federal Rule of Criminal Procedure 35(b),
“or any other rule that permits the modification of a
final judgment, ” that party should ask the district
court to indicate whether it is inclined to grant the motion.
If the district court says it is so inclined, the Seventh
Circuit will remand the case to the district court to modify
plaintiff filed his motion for reconsideration under
Fed.R.Civ.P. 60(a) and (b), but he did not ask the court
whether it would be inclined to grant the motion. If he
had asked, the court would have told him that it is
not so inclined.
plaintiff raises three issues in his motion for
reconsideration. First, he asserts that “the court made
a mistake when it dismissed Michael Meisner” in its
November 23, 2016 screening order because “Meisner is
liable under the doctrine of respondeat superior.” Dkt
92 at 2. Second, he asserts that the defendants filed
“sham declarations” to prove that a handbook
containing the rule at issue was available to the plaintiff
on his unit at the time of the alleged misconduct.
Id. at 2-3. Third, he asserts that the “court
was in error” when it “mischaracterized the
plaintiff's claim” and failed to consider arguments
relevant to claims that he raised for the first time in his
response to the defendants' motion for summary judgment.
Id. at 3-5.
60(a) allows a court to “correct a clerical mistake or
a mistake arising from oversight or omission whenever one is
found in a judgment, order, or other part of the
record.” The plaintiff does not assert that that court
made a clerical mistake or a mistake arising from oversight
or omission. The plaintiff asserts that the court's
reasoning and decisions were wrong. Rule 60(a) does not
60(b) allows a court to relieve a party from a final judgment
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud . . ., misrepresentation, or misconduct by an