The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Catherine Fahy has sued defendants under 42 U.S.C §
("section") 1983, alleging that defendants deprived Dale Fahy of his
constitutional rights while he was in their custody. Defendants Page and
Eisenberg have filed a motion to dismiss. For the reasons set forth
below, the motion is denied. Facts
Dale Fahy ("Dale"), now deceased, was a resident of Will County,
Illinois. (Compl. ¶ 3.) He was arrested by Downer's Grove police on or
about July 15, 1999. (Id. ¶¶ 4, 6.) At the time he was taken into
custody, Dale told the police and others that he intended to commit
suicide. (Id. ¶ 5.) He was placed under a suicide watch by the Downer's
Grove Police Department. (Id. ¶ 6.) On or about July 16, 1999, Dale was
transferred from the Downer's Grove Police Department to the Will County
Sheriff's Department. (Id. ¶ 7.) While in sheriff's department custody,
Dale was under a suicide watch. (Id. ¶ 8.) On or about July 22, 1999,
Dale was transferred to the State of Illinois' Department of Corrections
("IDOC"). (Id. ¶ 9.)
IDOC placed Dale at the Danville Correctional Facility ("Danville") in
Danville, Illinois. (Id. ¶ 12.) While at Danville, Dale was placed on
psychiatric medications. (Id. ¶ 13.) He was transferred from Danville to
the IDOC facility in Joliet, known as "Stateville." (Id. ¶¶ 10, 12.) While
at Stateville, Dale was under a suicide watch for approximately forty
hours. (Id. ¶ 11.) On September 28, 1999.while at Stateville, Dale took
his own life by hanging himself in his jail cell. (Id. ¶ 19.)
Plaintiff alleges that while in the custody of the Downer's Grove
Police Department, Will County Sheriff's Department and IDOC (at both
Danville and Stateville), Dale exhibited signs, symptoms and behavior
indicative of a person reasonably likely to commit suicide. (Id. ¶ 14.)
He was identified or otherwise known by employees or agents of each
police agency or institution to be a suicide risk, (Id. ¶ 15.) IDOC has
established protocols and procedures to be followed with inmates like
Dale who exhibit suicidal tendencies. (Id. ¶ 16.) According to plaintiff, defendants disregarded Dale's safety and
well-being by failing to properly and adequately examine and evaluate
him. (Id. ¶ 17.) They failed to properly and adequately supervise
subordinates who failed to properly and adequately examine or evaluate
Dale. (Id.) Defendants refused or deliberately failed to adequately
advise other IDOC staff of the risk of suicide in Dale's case, and they
failed to refer him to appropriate professionals for treatment. (Id.)
Defendants also failed to provide protection, and failed to take other
necessary and reasonable steps, to keep Dale from committing suicide.
(Id.) In doing all of the above, Dale was denied his rights under the
Eighth and Fourteenth amendments.
Before addressing defendants' arguments in support of their motion to
dismiss, a brief history of the case with respect to these two defendants
is warranted. Plaintiff filed her complaint on September 28, 2001.
Defendant Page was served on April 18, 2002. The case was up for a status
hearing on May 21, 2003, and plaintiff failed to appear. We rescheduled
the status hearing for June 4, 2003, and warned that if plaintiff failed
to appear then, the case would be dismissed for want of prosecution.
Plaintiff failed to appear on June 4 and we dismissed the case. On June
16, 2003, plaintiff moved to vacate the dismissal order. We granted
plaintiff's motion and the case was reinstated on July 29, 2003.
Plaintiff's attorneys withdrew from the case in October 2003. At a
status hearing on November 12, 2003, attended by plaintiff's new counsel,
we set a discovery schedule and gave plaintiff additional time to serve
any unserved defendants, including Eisenberg. Eisenberg was served on
December 22, 2003. Although presented in a somewhat complex manner, Page and Eisenberg' s
motion to dismiss seems to be grounded in two theories: that our June 4,
2003 dismissal of this case under Rule 41 was a dismissal with prejudice,
and we could not reinstate the case because the statute of limitations
had run; and that the case with respect to Eisenberg should be dismissed
because he was served well beyond the time allowed under Rule 4(m) and
beyond the statute of limitations. We address each argument in turn.
Reinstatement of Plaintiff's Case
Because defendants are essentially objecting to our July 29, 2003
reinstatement of plaintiff's case we construe their motion as a motion to
reconsider. See Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985)
("Of course, if the order was interlocutory, [the district judge] had the
power to reconsider it at any time before final judgment."). Motions to
reconsider do not have express filing requirements or time constraints.
See Holmes v. City of Aurora, 1995 WL 21606, at *2-3 (N.D. Ill. Jan. 17,
A motion to reconsider is appropriate where: the court has
misunderstood a party; the court has made a decision outside the
adversarial issues presented to the court by the parties; the court has
made aft error of apprehension (not of reasoning); a significant change
in the law has occurred; or significant new facts have been discovered.
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191
(7th Cir. 1990). Motions to reconsider are not the time to rehash old
arguments or tender new legal theories. Rothwell Cotton Co. v. Rosenthal
& Co., 827 F.2d 246, 251 (7th Cir. 1987) (internal citation omitted);
Holmes, 1995 WL 21606, at . Defendants do not now seem to advance any of the arguments listed above
that warrant a fresh examination of the issue. They suggest that this
Court made an error of reasoning, saying that our June 4, 2003 dismissal
of this case was "a permanent one and effectively with prejudice." (Mot.
to Dismiss at 3.) According to defendants, the statute of limitations on
this case ran out on September 28, 2001, the day the case was filed. They
go on to say that "plaintiff's right to sue anyone permanently ended on
June 4, 2003, the day [this Court] dismissed this case for want of
prosecution." (Id, at 6.) Thus, say defendants, we had no jurisdiction to
vacate the dismissal order because the lawsuit had essentially expired.
(Id. at 3.)
As noted above, a motion to reconsider is not the proper vehicle to
address an error of reasoning. See Bank of Waunakee, 906 F.2d at 1191.
Even if we do reconsider our decision to reinstate the case, however,
defendants are incorrect in assuming that the reinstatement acted as a
new filing and therefore implicates statute of limitations concerns.
Following our dismissal of the case, plaintiff moved to vacate the
dismissal order. Under Rule 60(b), we can grant relief from judgment
under certain circumstances, and we exercised our discretion under this
Rule to grant plaintiff's motion and reinstate the case. See 3 Penny
Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 340-41 (7th Cir.
1987) (discussing dismissal under Rule 41(b), reinstatement of case under
Rule 60(b) and court's discretion under both rules). In granting
plaintiff's motion, we effectively revived the original case, thus
avoiding any statute of limitations problem associated with filing a new
claim.*fn1 Feldman v. American Mem'l Life Ins. Co., 1998 WL102663, at *3
(N.D. Ill. Mar. 3, 1998) (citing Peterson v. BMI Refractories, 132 F.3d 1405, 1414 (11th Cir.
1998); Ford v. Sharp, 758 F.2d 1018, 1024 (5th Cir. 1985)). Plaintiff may
continue her case against defendants.
Service of Defendant Eisenberg
Defendants base their motion to dismiss Eisenberg on the facts that:
Eisenberg was served in late December 2003, "well over the expiration
period of the statute of limitations"; and plaintiff did not exhibit
"good cause" as required by Rule 4(m) to warrant an enlargement of time
to effect service so late in the case. (Mot. to Dismiss at 2, 4, 5.) As
discussed supra, defendants appear to be asking us to reconsider
our November 2003 decision to allow plaintiff additional time to ...