United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON, District Judge.
motions filed by pro se plaintiff Demetrius Blankenship are
before the court: (1) a motion to vacate the decision
granting summary judgment to defendant American Phoenix on
Blankenship's employment discrimination claims, Dkt. 50;
and (2) a motion to compel discovery, Dkt. 51. For the
reasons discussed below, I will deny both motions.
motion to vacate, Blankenship says that a jury could infer
discriminatory intent from the way that American Phoenix
handled a coworker's use of a racial slur, from alleged
inaccuracies in the company's time records, and from the
timing of a change in the company's attendance policy.
But I considered each of these issues in the summary judgment
opinion. See Dkt. 47, at 7-14. Because Blankenship is
repeating the same arguments in his new motion, I need not
consider these issues again.
raises three discovery-related issues in his motion. First,
he says that I was wrong to deny the motion to compel that he
filed in September 2018. Second, he says that I should have
denied summary judgment and directed American Phoenix to
produce medical and attendance records of co-workers. Third,
along the same lines, he says that I should vacate the
summary judgment order to direct the same discovery now.
Because of all of these issues are related, I will consider
undisputed that the parties had agreed to stay discovery
(without informing the court or asking to stay the case) at
the time that Blankenship filed his motion to compel.
Blankenship says that he filed the motion because he was
tired of waiting for American Phoenix to respond to his
settlement offer. But Blankenship admits that he didn't
give notice to American Phoenix before filing his motion to
compel that he wanted to lift the stay. And by the time
American Phoenix had filed its response to Blankenship's
motion to compel, it also provided responses to
Blankenship's discovery requests. That mooted
weeks after his reply brief in support of his motion to
compel was due, Blankenship said that the documents American
Phoenix provided were “irrelevant, non-responsive, and
totally opposite to the documentation requested.” Dkt.
17, at 2. But that was not the issue that Blankenship raised
in his motion to compel. If he was unhappy with American
Phoenix's responses, he should have filed a new motion to
compel. A party cannot raise new issues in a reply brief.
Narducci v. Moore, 572 F.3d 313, 324 (7th Cir.
event, I could not grant Blankenship any relief because he
didn't provide copies of his discovery requests or
American Phoenix's responses, summarize those requests or
responses, or explain what was wrong with the responses or
why he believed he was entitled to any information that
American Phoenix was refusing to provide. So I had no way of
determining whether American Phoenix was wrongfully
order denying his motion to compel, I explained to
Blankenship exactly what he should do if he wanted the court
to order American Phoenix to supplement its discovery
responses: (1) identify the particular discovery request at
issue; (2) explain why American Phoenix's response to
that request is not sufficient; and (3) identify the
additional discovery that he believes American Phoenix should
provide. Dkt. 20. But Blankenship didn't do that.
didn't file a motion under Federal Rule of Civil
Procedure 56(d) in which he identified the specific discovery
he needed to respond to the summary judgment motion,
explained why he needed the discovery to defeat the summary
judgment motion, and showed that he acted reasonably in
failing to obtain the discovery sooner. See Citizens for
Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1082
(7th Cir. 2016); Kallal v. CIBA Vision Corp., 779
F.3d 443, 446 (7th Cir. 2015); American Needle Inc. v.
National Football League, 538 F.3d 736, 740-41 (7th Cir.
2008). Instead, Blankenship complained generally in his
summary judgment brief that American Phoenix had refused to
provide medical records of a coworker, which Blankenship
believed would show disparate treatment. He also asked the
court to order American Phoenix to provide attendance records
of coworkers for the same reason.
cannot bury a motion in a brief. James Cape & Sons
Co. v. PCC Const. Co., 453 F.3d 396, 400-01 (7th Cir.
2006). But even if I could have construed Blankenship's
brief as a motion to compel or motion under Rule 56(d), I
could not have granted Blankenship relief. As for the request
for medical records, Blankenship still did not identify a
particular discovery request that he had made and he did not
tell the court what objections American Phoenix raised to
producing the medical records. Even now, Blankenship
hasn't done either of those things, making it impossible
to determine whether American Phoenix violated the federal
rules. As for the request for attendance records, Blankenship
has failed to justify-then or now-his failure to ask for
those records sooner.
bottom line is that Blankenship hasn't shown that I erred
in denying his discovery requests and granting summary
judgment to American Phoenix. And for the same reasons, he
hasn't shown that he is entitled to relief now.
Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir.
1995) (“It is not the purpose of allowing motions for
reconsideration to enable a party to complete presenting his
case after the court has ruled against him.”). Although
courts must construe pro se pleadings liberally and may
excuse technical mistakes, “it is also well established
that pro se litigants are not excused from compliance with
procedural rules.” Pearle Vision, Inc. v.
Romm, 541 F.3d 751, 758 (7th Cir. 2008). In this case, I
informed Blankenship what he needed to do to obtain
additional discovery, but Blankenship failed to follow those
instructions, so he is not entitled to another chance to
litigate his case
ORDERED that plaintiff Demetrius Blankenship's motion to
vacate the decision granting summary judgment to defendant
American Phoenix, Dkt. 50 and ...