Birdo v. Gomez

• Decision Date: 17 October 2016
• Docket Number: Case No. 13-CV-6864
• Citation: 214 F.Supp.3d 709
• Parties: Kevin BIRDO, Plaintiff, v. Deputy Director DAVE GOMEZ et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

214 F.Supp.3d 709

Kevin BIRDO, Plaintiff,

v.Deputy Director DAVE GOMEZ et al., Defendants.

Case No. 13-CV-6864

United States District Court, N.D. Illinois, Eastern Division.

Signed October 17, 2016

Jeffrey C. Clark, Brett W. Barnett, James Schanaberger, Jason Theodore Mayer, McGuireWoods LLP, Chicago, IL, for Plaintiff.

Agnes A. Ptasznik, Jennifer Marie Lutzke, Summer Muazaz Hallaj, Office of the Illinois Attorney General, Michael R. Slovis, Chad Michael Skarpiak, Michael Franklin Compton, Peter James Strauss, Sean Barros Mascarenhas, Cunningham, Meyer & Vedrine, P.C., Melissa Y. Gandhi, McBreen, Kopko & Dayal, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John Robert Blakey, United States District Judge

On July 27, 2016, this Court issued a Memorandum Opinion and Order [172] granting in part and denying in part Defendants' Motions for Summary Judgment [139] and [145]. On August 5, 2016, Defendants John Combs, Anthony Egan, Dave Gomez, Michael Lemke, Jenny McGarvey and Kenneth Nushardt (collectively, the "State Defendants") filed a combined motion to: (1) reconsider the Court's Memorandum Opinion and Order as it relates to Counts I, IV, V, and VIII; and (2) in the alternative, sever Count I pursuant to Federal Rule of Civil Procedure 21. State Defs.' Combined Mot. Reconsider and Sever [173]. On August 25, 2016, Defendants Dr. Catherine Larry and Susan Wilson (collectively, the "Mental Health Defendants") filed a motion to join the State Defendants' combined motion [182], which the Court granted on August 30, 2016.¹

Minute Entry [184]. For the reasons stated below, State Defendants' motion is granted in part and denied in part.

I. Legal Standard

Motions to reconsider, while permitted, are generally disfavored. Patrick v. City of Chicago , 103 F.Supp.3d 907, 911 (N.D. Ill. 2015). The Federal Rules of Civil Procedure allow a court to alter or amend a judgment only if the moving party can demonstrate "a manifest error of law or present newly discovered evidence." Flint v. City of Belvidere , No. 11–CV–50255, 2014 WL 11397797, at *1 (N.D. Ill. June 17, 2014) (citing Obriecht v. Raemisch , 517 F.3d 489, 494 (7th Cir. 2008) ). A party asserting such an error "bears a heavy burden." Patrick , 103 F.Supp.3d at 912. A "manifest error" is not demonstrated merely "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. Such error occurs "when a district court 'has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.' " Patrick , 103 F.Supp.3d at 912 (quoting Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) ). A motion to reconsider "does not allow a party to revisit strategic decisions that prove to be improvident, to reargue the evidence, to make new arguments, or to introduce new evidence that could have been presented earlier." HCP of Illinois, Inc. v. Farbman Grp. I, Inc. , 991 F.Supp.2d 999, 1000 (N.D. Ill. 2013).

II. Discussion

A. State Defendants' Motion to Reconsider

1. Counts IV and V

Defendants raise three objections to the Court's prior ruling denying summary judgment as to Counts IV and V. First, Defendants claim that there is no evidence in the record to support the proposition that Plaintiff intended to convey a particularized message with his October 2012 hunger strike. State Defs.' Combined Mot. Reconsider and Sever [173] 3. Defendants argue that, absent a particularized message, Plaintiff's hunger strike does not constitute constitutionally protected activity. Second, Defendants assert that, regardless of Plaintiff's intent, there is no showing that "anyone understood the purported rationale behind his hunger strike." Id. at 4. According to Defendants, the absence of such evidence undermines the Court's finding that "the likelihood was great that [Plaintiff's] message would be understood by those who viewed it." Spence v. State of Wash. , 418 U.S. 405, 411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). Finally, Defendants claim that, even assuming Plaintiff's hunger strike qualified for constitutional protection, such a right was not clearly established at the time of the challenged conduct, thus entitling Defendants to qualified immunity. Id. Each of Defendants' arguments will be addressed in turn.

To begin, Defendants misinterpret the record before the Court. The record contains evidence that on August 1, 2012, Plaintiff was involved in a physical altercation with another inmate. PSOAF [159] Attach. 1 at 10:12-23, 16:18-20. As a result of the altercation, Plaintiff injured his right pinkie finger. Id. The same day, Plaintiff received three disciplinary tickets for his role in the altercation. PSOAF [159] Attach. 19.

On August 23, 2012 and September 20, 2012, Plaintiff filed written grievances protesting the three disciplinary tickets and the delay in medical treatment for his injured finger. PSOAF [159] Attachs. 18, 22. A decision regarding Plaintiff's August 23, 2012 grievance was not made until December 2, 2012, when it was denied by Stateville's Grievance Officer. PSOAF [159] Attach. 20. The Grievance Officer's denial was approved by the Chief Administrative Officer on December 6, 2012. Id. Plaintiff filed a renewed written grievance regarding his disciplinary tickets on January 23, 2013. PSOAF [159] Attach. 21. Plaintiff testified that he began his hunger strike on October 17, 2012 and continued until April 25, 2013. Based on the above timeline, a reasonable fact-finder could infer that Plaintiff initiated his hunger strike to protest his outstanding disciplinary tickets and the continued delay in medical treatment for his injured finger.

The record is equally clear that multiple individuals at Stateville understood the purpose behind Plaintiff's strike. On November 21, 2012, Plaintiff received outpatient mental health treatment pursuant to Stateville's hunger strike protocol. The mental health provider's progress notes indicate that Plaintiff remained "agitated [and] on hunger strike to have tickets dropped. " PSOAF [159] Attach. 23 (emphasis added). On March 11, 2013, Plaintiff underwent another mental health evaluation by Dr. John Garlick ("Garlick"). PSOAF [159] Attach. 25. During the evaluation, Plaintiff told Dr. Garlic that he had "been on [a] hunger strike since 10/17/12" and that the strike "started [because of] concerns about unfair discipline. " Id. Such evidence is sufficient to support a finding that Plaintiff's message was understood by those who viewed it.²

Defendants' qualified immunity claim, however, demands further consideration. As a preliminary matter, the Court must address the fact that Defendants utterly failed to raise any qualified immunity claim in their initial summary judgment motions. As Plaintiff correctly points out, motions for reconsideration "are not appropriate vehicles" for generally "arguing issues or presenting evidence that could have been raised during the pendency of the motion presently under reconsideration." Anderson v. Holy See , 934 F.Supp.2d 954, 957 (N.D. Ill. 2013), aff'd sub nom. Anderson v. Catholic Bishop of Chicago , 759 F.3d 645 (7th Cir. 2014).

Plaintiff avers that Defendants' oversight constitutes waiver of any qualified immunity defense. Pl.'s Resp. State Defs.' Combined Mot. Reconsider and Sever [185] 4. As "with other affirmative defenses upon which the defendants bear the burden of proof, the defense of qualified immunity may be deemed as waived if not properly and timely presented before the district court." Walsh v. Mellas , 837 F.2d 789, 799 (7th Cir. 1988) (internal citations omitted); Doyle v. Camelot Care Centers, Inc. , 160 F.Supp.2d 891, 908 (N.D. Ill. 2001), aff'd , 305 F.3d 603 (7th Cir. 2002) ("The qualified immunity defense...can be waived if the defendant either fails to raise the defense in a timely fashion or fails to raise it with sufficient particularity.").

Other courts, however, have declined the invitation to hold defendants to the harsh standard advocated by Plaintiff. For example, in Harris v. Houston , a jury found in favor of the plaintiff on a 42 U.S.C. § 1983 claim. 53 F.Supp.2d 1027, 1028 (E.D. Wis. 1999). After trial, the defendant submitted a Rule 50 motion based upon the defense of qualified immunity. Id. The defendant failed, however, to raise the defense in her pre-trial summary judgment motion. Id. Nevertheless, the district court held that the defense had not been waived, even though summary judgment "would have been an appropriate time for the court to have addressed this issue, especially since qualified immunity (if applicable) can operate as a complete bar to suit and is designed to spare government officials the cost and burden of discovery and trial." Id. The court supported its finding with the fact that, while the defendant's summary judgment motion was silent on the issue, the defendant "did raise [the defense] in motions that she made just before trial and again after verdict." Id.

Similarly, in Rakovich v. Wade , the plaintiff, a member of the Greenfield, Wisconsin Civil Service Commission, alleged that members of the Greenfield Police Department conducted an unlawful criminal investigation of the plaintiff that was reported in the local newspaper. 850 F.2d 1180, 1183–84 (7th Cir. 1988). The officers raised a qualified immunity defense, "but did not do so until they moved for a directed verdict at the close of Rakovich's case in chief, although the immunity issue had been raised in their pre-trial brief." Id. at 1204. Although the district court denied the motion, the defendants re-raised the issue on appeal. Id. The Seventh Circuit held that such circumstances did not constitute a waiver of the qualified immunity defense. Id. at n.16. The court reasoned that, although "the purpose of an...