United States District Court, E.D. Wisconsin
DEBRADRE D. JACKSON, Plaintiff,
OZAUKEE COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM
JUDGMENT AND MOTION TO AMEND COMPLAINT (DKT. NO. 8)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
August 31, 2018, the court dismissed this case because the
plaintiff's complaint did not state a claim for which a
federal court could grant relief. Dkt. No. 6. The court
concluded that a “two to three hour” delay in
treating the plaintiff's whiplash-whiplash the plaintiff
alleged was caused when the transport van in which he was a
passenger hit another car-did not suffice to state a claim
for an Eighth Amendment violation. Id. at 6-7.
Specifically, the court concluded that there was nothing
malicious or improper about the defendants waiting until the
transport vehicle arrived at the institution to provide the
plaintiff with medical care for his whiplash. Id. at
7. The plaintiff followed up by filing a motion for relief
from judgment and motion to amend the complaint. Dkt. No. 8.
The plaintiff attached a proposed amended complaint for the
court to review. Dkt. No. 8-1.
plaintiff filed his motion under Fed.R.Civ.P. 59(e). That
rule allows a party to file a motion to “alter or amend
a judgment” “no later than 28 days after the
entry of the judgment.” The court received the
plaintiff's motion on September 24, 2018-twenty-four days
after the court entered judgment. The plaintiff's motion
was timely filed.
59(e) motions serve a very limited purpose. A court may alter
or amend a judgment under Rule 59(e) when the plaintiff
presents newly discovered evidence or shows that the court
committed 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)). A “manifest error” is
not demonstrated by the disappointment of the losing party.
Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000). It is the “wholesale disregard,
misapplication, or failure to recognize controlling
precedent.” Id. (quoting Sedrak v.
Callahan, 987 F.Supp. 1063, 1069 (N.D. Ill. 1997)).
plaintiff's motion does not present the court with
newly-discovered evidence. He does not identify any manifest
error of law or fact that the court committed in dismissing
his complaint. The motion says only that he would like
permission to amend the complaint because the plaintiff
“corrected some information in the old complaint and
stated detailed information in fact the [sic] was left
out-overlooked when writing complaint.” Dkt. No. 8. The
fact that the plaintiff left some facts out of his complaint
is not a sufficient basis for the court to grant the motion
to alter or amend the complaint under Rule 59(e).
the plaintiff stated sufficient grounds for amending the
complaint. First, there is no complaint for him to amend,
because the court dismissed the complaint. Second, even if
the court were to reopen the case, it would be futile for the
court to grant the plaintiff leave to amend the complaint.
district court does not abuse its discretion in denying leave
to amend if the proposed repleading would be futile . . .
.” Garcia v. City of Chi., Ill., 24 F.3d 966,
970 (7th Cir. 1994) (citing DeSalle v. Wright, 969
F.2d 273, 278 (7th Cir.1992)). “[F]utile repleadings
include restating the same facts using different language,
reasserting claims previously determined, failing to state a
valid theory of liability, and the inability to survive a
motion to dismiss.” Id. (internal citations
plaintiff's proposed amended complaint adds a few details
to the facts he stated in the dismissed complaint. He
explains that the accident where the transport van hit a car
happened in the Ozaukee County Jail parking lot. Dkt. No. 8-1
at 2. He asserts that the jail had “on-site medical
staff” that could have come and treated his injuries.
Id. at 3. He alleges that instead of the jail staff
coming to treat his injuries, the deputies “got back in
the van and drove [him] 2-3 hours away to Racine
Correctional, ” and that the deputies did not inform
the staff at Racine Correctional that he was hurt or make
sure he got proper care. Id. at 3-4. The proposed
amended complaint asserts that the plaintiff could have had a
“neck fracture” or “internal bleeding in
the skull.” Id. at 3, ¶4.
delay in referring a prisoner to treatment does not typically
suggest deliberate indifference. Berry v. Peterman,
604 F.3d 435, 442 (7th Cir. 2010) (“We do not suggest
that a minor delay in treatment constitutes deliberate
indifference.”) The Seventh Circuit affirmed a district
court's conclusion that a two-hour delay in the treatment
of a broken hand “did not seem like an unreasonably
long wait” to x-ray, examine and possibly cast an
injury. Murphy v. Walker, 51 F.3d 714, 721 (7th Cir.
1995); see also Brown v. Darnold, 505 F.3d App'x
584, 587 (7th Cir. 2013) (concluding that a two-hour delay in
treatment for back pain did not suggest deliberate
indifference). Even when the plaintiff “clearly”
has “a severe injury, ” the Seventh Circuit has
held that a minor delay in providing medical care did not
rise to the level of a constitutional violation, because
“the public often waits longer at hospital emergency
rooms.” Langston v. Peters, 100 F.3d 1235,
1240-41 (7th Cir. 1996). The delay in treatment “does
not by itself implicate the Eighth Amendment.”
Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992).
facts in the proposed amended complaint do not change the
court's analysis of the plaintiff's Eighth Amendment
claim. The plaintiff says that after the collision, Deputy
Keller asked him if he was alright. Dkt. No. 8-1 at 2. The
plaintiff says he told Keller that he was not alright, and
was in “a lot of pain” from hitting his head.
Id. The plaintiff says that a lay person should have
known the dangers of auto accidents, and that Keller should
have known “how it is a serious medical condition when
the person involved in the accident informs them they are
injured.” Id. at 2-3. The plaintiff speculates
that he could have had fractures or internal bleeding, and
that because of these possibilities, the defendants should
have taken him back inside the jail to see medical staff.
Id. at 3. He says that their choice to drive him
back to Racine Correctional Institution two to three hours
away constituted deliberate indifference. He also alleges
that the deputies didn't tell Racine staff about the
accident, although the dismissed complaint indicated that
upon arriving at Racine, the plaintiff was “rushed to
the Emergency room at ‘Aurora Health Care, 10400 75th
St., Kenosha, Wisconsin 53142.'” Dkt. No. 1 at 2.
than the plaintiff's allegation that he told Keller he
was in a “lot of pain” and that he was not
alright, the proposed amended complaint does not allege any
facts to demonstrate that the defendants had any reason to
believe that the plaintiff was suffering from an objectively
serious medical condition. See Farmer v. Brennan,
511 U.S. 825, 837 (1994). The plaintiff says that even a lay
person would have recognized that being in a collision could
cause a serious medical condition, but that is not the test.
The test is not whether the plaintiff could have
suffered a serious medical condition, but whether the
defendants had any reason to believe that he was
suffering from such a condition when they decided to take him
back to Racine. The plaintiff does not allege that he was
bleeding, or that he passed out, or that his vision was
blurred, or that he could not move his head or neck. He says
only that he told Keller that he was in “a lot of
pain.” Even if that was enough to make Keller aware
that the plaintiff had an objectively serious medical
condition, Keller's choice to take the plaintiff the
fifty miles back to Racine, rather than take him back into
the county jail to see the staff there, does not show that he
had actual knowledge of a serious risk to the plaintiff but
acted in disregard of that risk.
plaintiff has not stated grounds for the court to alter or
amend its judgment under Rule 59(e), and even if he had, it
would be futile for the court to allow him to amend his
complaint because the proposed amended complaint does not
state a claim for deliberate indifference.
court DENIES the plaintiffs motion for
relief from judgment and motion to ...