United States District Court, N.D. Indiana, Hammond Division
Joe Harrison, Pro se Plaintiff
OPINION AND ORDER
R. CHERRY, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on a Verified Motion to Alter or
Amend Summary Judgment Opinion and Order [DE 93], filed by
Plaintiff Gary Joe Harrison, pro se, on November 15, 2017.
The same date, Harrison filed a “Judicial Notice,
” which contains a “Plaintiff's Verified Pro
Se Counter Motion in Response to Defendants' Motion for
Summary Judgment” and a “Memorandum in
Support.” Although Harrison's attorneys of record
Scott L. King and Russell W. Brown, Jr. have not withdrawn
their appearances, Harrison identifies himself as proceeding
pro se and he refers to the attorneys as his former
attorneys. Therefore, in these post judgment proceedings, the
Court considers Harrison's pro se motion and filings.
filed a response on November 27, 2017.
matter is also before the Court on a “Motion to Advise
Court and Request for Civil Rule 59 Relief Based Upon
Defendants' Fraud Misleading District Court Resulting in
a Manifest Error When Summary Judgment was granted for
Defendants and Unjustly Against Plaintiff” [DE 96],
filed by Harrison on December 14, 2017. This filing is titled
a “motion” and offers new evidence as exhibits
not attached to the November 15, 2017 motion; yet, the
content of the filing appears to be in reply to
Defendants' response to Harrison's original motion.
To the extent the December 14, 2017 filing is a new motion,
it was filed more than twenty-eight days after the entry of
judgment; therefore, it is untimely under Rule 59.
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.”). However, because Harrison could
have brought the arguments contained therein under Federal
Rule of Civil Procedure 60(b), which can be made within a
year of the entry of judgment, the Court considers it to be
brought under Rule 60(b). See Fed. R. Civ. P. 60(b),
(c)(1); see also United States v. Antonelli, 371
F.3d 360, 361 (7th Cir. 2004) (explaining that courts should
look to the substance, not the label, of a pro se filing to
determine its character); United States v. Deutsch,
981 F.2d 299, 300-01 (7th Cir. 1992) (considering a motion
filed after the time limit of Rule 59(e) to be brought under
January 30, 2015, Harrison filed a Complaint, pro se. On May
5, 2015, Attorney Raymond Gupta entered his appearance on
behalf of Harrison, and on July 2, 2015, Harrison filed an
Amended Complaint through counsel. On May 6, 2016, Attorney
Gupta moved to withdraw his appearance, and the Court granted
the motion on May 17, 2016. On September 27, 2016, Attorneys
Russell Wayne Brown, Jr. and Scott L. King entered their
appearances on behalf of Harrison. On October 20, 2016, the
Court held a Rule 16(b) scheduling conference, extending the
discovery deadline to March 31, 2017, and the dispositive
motion deadline to May 1, 2017.
April 28, 2017, Defendants filed a Motion for Summary
Judgment. On May 26, 2017, Harrison, through counsel, filed a
response in opposition to the Motion for Summary Judgment,
and on June 6, 2017, Defendants filed a reply in support. On
June 6, 2017, Defendants also filed a Motion to Strike
Non-Sworn Statements Contained in Plaintiff's Response to
Defendants' Motion for Summary Judgment. Harrison did not
file a response to the Motion to Strike.
October 19, 2017, the Court issued an Opinion and Order
granting Defendants' Motion for Summary Judgment. The
same day, a clerk's entry of judgment was entered.
Motion to Alter or Amend Summary Judgment Opinion and Order
filed on November 15, 2017, Harrison asks the Court to amend
its summary judgment ruling pursuant to Federal Rule of Civil
Procedure 59. Rule 59(e) provides that a “motion to
alter or amend judgment must be filed no later than 28 days
after the entry of the judgment.” Fed.R.Civ.P. 59(e).
Such a motion may be granted when the moving party
demonstrates the discovery of new evidence or a manifest
error of law by the court that warrants the alteration or
amendment of the judgment. See Obriecht v. Raemisch,
517 F.3d 489, 494 (7th Cir. 2008). However, a motion to alter
or amend judgment “is not appropriately used to advance
arguments or theories that could and should have been made
before the district court rendered a judgment.” LB
Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267
(7th Cir. 1995). Rule 59(e) relief is an “extraordinary
remedy.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008).
initial matter, to the extent that Harrison seeks relief
based on his disagreement with his attorneys' actions in
this case, more specifically what he describes as
“never authoriz[ing] his previous attorney of record to
change any facts as they were originally filed in, ”
“the response that Plaintiff's attorney made behind
Plaintiff's back, ” and the “bogus Response
Brief, ” (ECF 93, pp. 1, 2), the Seventh Circuit Court
of Appeals has held that an attorney's conduct is imputed
to the client in any context. United States v.
DiMucci, 879 F.2d 1488, 1496 (7th Cir. 1989). More
specifically in the context of post-judgment relief, an
attorney's intentional or negligent misconduct is not a
basis for relief. See, e.g., United States v.
7108 West Grand Ave., Chicago, Ill., 15 F.3d 632 (7th
Cir. 1994). Therefore, Harrison's disagreement with the
response brief filed by his attorney is not a basis for the
Court to alter or amend the summary judgment ruling.
November 15, 2017 motion, Harrison asks the Court to alter or
amend the judgment under Rule 59 on the basis that certain
disputed facts were not brought to the Court's attention.
Specifically, Harrison argues that the EMT ambulance
technicians who picked up Harrison from the Griffith police
station to transport Harrison to the hospital were eye
witnesses to the officer defendants' actions that
Harrison describes as an “unprovoked brutal attack and
brutality perpetrated against Plaintiff twice inside
the ambulance outside the view of the police parking lot
security cameras while Plaintiff was strapped helpless to the
gurney on April 18, 2014.” (ECF 93, p. 2) (emphasis
added). Notably, Harrison does not argue that there has been
an intervening change in the controlling law or that the
Court made a manifest error of law.
other words, Harrison argues only that the Court did not
consider all the evidence. However, Harrison has not
demonstrated that this is new evidence that could not have
been presented to the Court in opposition to Defendants'
Motion for Summary Judgment. To demonstrate that evidence was
“newly discovered, ” the “moving party must
‘show not only that this evidence was newly discovered
or unknown to it until after the hearing, but also that it
could not with reasonable diligence have discovered and
produced such ...