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Harrison v. Town of Griffith

United States District Court, N.D. Indiana, Hammond Division

January 9, 2018

GARY JOE HARRISON, Plaintiff,
v.
TOWN OF GRIFFITH, GRIFFITH POLICE DEPARTMENT, JASON JAQUES, TONY MORRIS, GREG MANCE, and DAVID BORGETTI, Defendants.

          Gary Joe Harrison, Pro se Plaintiff

          OPINION AND ORDER

          PAUL R. CHERRY, UNITED STATES MAGISTRATE JUDGE

         This 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 have not withdrawn their appearances, Harrison identifies himself as proceeding pro se and he refers to the attorneys as his former attorneys.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.

         Defendants filed a response on November 27, 2017.

         This 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 Rule 60(b)).

         BACKGROUND

         On 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.

         On 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.

         On 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.

         ANALYSIS

         In the 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).

         As an 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.

         In the 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.

         In 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 ...


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