United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
August 21, 2019, the Court issued a screening order in which
it permitted Plaintiff to proceed on one claim of retaliation
in violation of the First Amendment against the
above-captioned Defendants. (Docket #10). On October 3, 2019,
Plaintiff filed a tardy motion for reconsideration under
Federal Rules of Civil Procedure (“FRCP”) 59(e)
and 60(b). (Docket #11). Plaintiff argues that the
untimeliness of his motion should be excused under Rule 60(b)
because the delay was the result of the law library's
inefficiencies. Id. at 1-2. FRCP 6(b) (not 60)
permits the Court to extend time of time upon a showing of
excusable neglect. However, “[a] court must not extend
the time to act under Rules. . .59(e). . .and 60(b).”
59(e) empowers a court to alter or amend a judgment on motion
by a party, but the Rule applies only to judgments, not the
Court's non-final orders, and it has a firm 28-day
deadline. Fed.R.Civ.P. 59(e). (“A motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.”). Therefore, the only
rule of procedure that applies at this juncture is FRCP
60(b), which requires motions be made “within a
reasonable time, ” offers relief from a court's
orders or judgments if a party can show “the narrow
grounds of mistake, inadvertence, surprise, excusable
neglect, newly discovered evidence, voidness, or ‘any
other reason justifying relief from the operation of the
judgment.'” Tylon v. City of Chi., 97
Fed.Appx. 680, 681 (7th Cir. 2004) (quoting FRCP 60(b)(6)).
Such relief “is an extraordinary remedy and is granted
only in exceptional circumstances.” Harrington v.
City of Chi., 433 F.3d 542, 546 (7th Cir. 2006). Simply
asserting “that the . . . court's underlying
judgment was wrong . . . is an impermissible use of Rule
60(b).” Tylon, 97 Fed.Appx. at 681.
is not entitled to the extraordinary relief afforded by FRCP
60(b). His motion presents no more than his disagreement with
the Court's legal conclusions. This is not a proper basis
for granting relief under Rule 60(b). In its screening order,
the Court determined that Plaintiff could proceed with his
complaint for retaliation against certain DCI employees who
changed his library usage times, withheld jury instructions,
and transferred him to another institution. (Docket #10). The
Court found, based on the very liberally construed
allegations in the complaint, that Plaintiff had engaged in a
protected activity (filing a grievance) and was retaliated
against by being denied access to the law library and
transferred to a prison. Id. at 8. The causal basis
for this claim as to the three above-captioned defendants
was, at screening, sufficiently alleged. However, the Court
explained that Plaintiff could not sue every single person
involved in the complaint review and transfer processes
merely because they did not halt the transfer or comport
themselves the way that Plaintiff believes they should have.
Id. The allegations against the former defendants
were simply too tenuous, even liberally construed. (Docket
#10 at 8-9) (explaining the lack of causal connection). For
example, Plaintiff never alleged that he had any interactions
with the former defendants that would prompt them to
retaliate against him-only that he submitted complaints, and
then wrote letters when his complaints did not have his
intended result. The facts that these former defendants
recommended and approved the transfer, and rejected his
inmate complaints as premature, are insufficient to suggest
that they condoned a retaliatory transfer in violation of his
constitutional rights. The mere fact that they were involved
in the complaint examination and transfer processes does not
give rise to a constitutional violation. Burks v.
Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009).
belabors and contorts various selections of the Department of
Correction (“DOC”) regulations in order to argue
that he has stated a claim for a constitutional violation,
but even liberally construed, these allegations fall short.
For example, Plaintiff contends that his rights were violated
because the DOC regulations require complaint examiners to
look into every complaint, but that is not what the
regulation says. The regulation states that “the
department shall maintain an inmate complaint review system.
. .[and] shall. . .allow an inmate to pursue a complaint of
retaliation through the ICRS.” Wis. Admin. Code DOC
§ 310.04(1)(g). In other words, the regulations require
institutions to allow inmates to submit complaints, and
Plaintiff was allowed to submit a complaint of retaliation
through the ICRS. The regulations also allow inmate complaint
examiners to reject complaints. Id. § 310.10(6)
(listing the reasons an examiner may reject a complaint,
including having failed to exhaust administrative remedies,
which is why Plaintiff's complaints were rejected).
Plaintiff disagrees with the outcome of his complaints, and
with the Court's screening order, but that does not give
rise to a constitutional violation.
Court previously stated, "[p]ublic officials do not have
a free-floating obligation to put things to right."
Raemisch, 555 F.3d at 595-96. They "are
entitled to relegate" tasks and duties to various
employees, and may rely on the determinations made by
complaint examiners. Id. It follows, then, that
employees who are involved in transfer decisions are
permitted to rely on the suggestions and conclusions made by
their colleagues, without becoming liable by proxy because
those colleagues may have had retaliatory motives. Plaintiff
has proffered no new facts or law to suggest that the Court
made a mistake. Plaintiff may submit amended pleadings in
this case until November 25, 2019. If he chooses it do so, he
is encouraged to use the pro se prisoner complaint form to
streamline the relevant facts and facilitate the Court's
review of those facts.
IT IS ORDERED that Plaintiff's motion
for reconsideration (Docket #11) be ...