Charles Sheppard v. Nancy Bowens

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2023*
Decided January 6, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1600
CHARLES SHEPPARD,
Plaintiff-Appellant,
v.
NANCY BOWENS,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 21-C-127
William C. Griesbach,
Judge.
O R D E R
Charles Sheppard, a Wisconsin prisoner, appeals from the denial of his motion to
reconsider the judgment in his suit asserting retaliation and deliberate indifference to
* We have agreed to decide the case without oral argument because the briefs and
the record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1600 Page 2
his serious medical needs. Because the district judge acted within his discretion to deny
reconsideration, we affirm.
Sheppard takes Pregabalin to manage pain from diabetic neuropathy. In late
2020, after being transferred to the Oshkosh Correctional Institution, an advanced
practice nurse at the prison, Nancy Bowens, discontinued his prescription after a recent
blood test indicated that he had either stopped metabolizing the drug properly or had
not been taking the medication as prescribed. Over Sheppard’s objections, Bowens
switched Sheppard to a combination of three other medications. He experienced
symptoms of withdrawal from the abrupt change, so Bowens put him back on
Pregabalin for a few days to taper him off the medication. After he was off the
medication, however, Sheppard said that he continued to suffer extreme pain and
began having seizures, which Pregabalin had helped to control. Sheppard repeatedly
asked Bowens to be placed back on Pregabalin, but Bowens explained she could not do
so without approval because the medication was classified (by the Wisconsin
legislature) as a controlled substance.
Sheppard then sued Bowens for deliberate indifference in switching his
prescription from Pregabalin to other medications and not prescribing any medication
for his seizures. He also asserts that she switched his medications in retaliation for a
lawsuit he had filed several years earlier.
The district judge entered summary judgment for Bowens on February 3, 2022.
Regarding Sheppard’s claim of deliberate indifference, the judge concluded that
Sheppard did not provide evidence that Bowens’s treatment was inappropriate or that
her care departed from medical standards. As for the retaliation claim, the judge
determined that Sheppard had not presented evidence that Bowens’s decision to switch
medications amounted to an unlawful deprivation or that the prior suit was a
motivating factor in the switch.
On March 16, Sheppard moved for reconsideration, repeating prior arguments
and elaborating that the judge overlooked evidence of his history of seizures. Because
he filed the motion more than 28 days after judgment, the judge construed the motion
under Rule 60(b) of the Federal Rules of Civil Procedure and denied it. The judge
explained that the motion did not address any of the grounds for relief under Rule 60(b)
and merely expressed general disagreement with the court’s underlying decision.
On appeal, Sheppard does not meaningfully engage the judge’s denial of his
Rule 60(b) motion and instead focuses on challenging the summary judgment

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No. 22-1600 Page 3
determination. But the submission that the district court construed as Sheppard’s notice
of appeal—the March 16 motion to reconsider—was filed more than 30 days after the
underlying judgment. See F ED. R. A PP . P. 4(a)(1)(A). When an appeal—as here—is timely
only with regard to the denial of a Rule 60(b) motion, we may not review the
correctness of the underlying judgment. See Gleason v. Jansen, 888 F.3d 847, 851–52
(7th Cir. 2018). Moreover, Sheppard has not described any “exceptional circumstances”
that require relief under Rule 60(b). Eskridge v. Cook Cnty., 577 F.3d 806, 809 (7th Cir.
2009).
In his reply brief, Sheppard invokes the prison mailbox rule and contends that
the annotation “mailed out March 1, 2022”—on the bottom the last page of the motion
to reconsider—authorized the judge to treat his motion to reconsider under Rule 59(e)
and thereby suspend the time to appeal. But that annotation is insufficient to satisfy the
mailbox rule because it was not made under oath and did not also state that postage
was prepaid. United States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004).
Sheppard also raises a host of narrower arguments on appeal that he did not
make in his Rule 60(b) motion (that the prison should have let him review his medical
file; that the judge should not have dismissed his state law causes of action or the
unidentified Doe defendants at screening; that the judge should not have rejected his
request for counsel). But these are arguments that he could have brought in a direct
appeal, and Sheppard forfeited his opportunity to appeal the summary judgment by
failing to file a notice of appeal that would have been timely with respect to the entry of
judgment. See Banks v. Chi. Bd. of Educ., 750 F.3d 663, 668 (7th Cir. 2014).
AFFIRMED

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