The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Monday, 16 May, 2011 02:54:44 PM Clerk, U.S. District Court, ILCD
CASE MANAGEMENT AND SUMMARY JUDGMENT ORDER #2
This cause is before the court for consideration of the Plaintiff's motion to reconsider the court's September 15, 2010 Summary Judgment Order [d/e 60], and Defendant Zhang's motion for summary judgment. [d/e 58]
The Plaintiff, Allen Bone, filed his complaint pursuant to 42 U.S.C. §1983 claiming that his constitutional rights were violated at the Pontiac Correctional Center. The Plaintiff alleged that Defendant Illinois Department of Corrections Director Roger Walker, Inmate Officer Sherry Benton and Dr. John Doe were deliberately indifferent to his serious medical condition in violation of the eighth amendment. December 2, 2008 Merit Review Order. The Plaintiff alleged he was denied care for his "back, left leg and brain." (Comp., p. 6D). The John Doe defendant was later identified as Dr. Liping Chang. See March 27, 2009 Text Order; May 7, 2009 Text Order.
On September 15, 2010, the court granted Defendants Benton and Walker's motion for summary judgment. The Plaintiff's sole surviving claim is that Dr. Chang violated his Eighth Amendment rights.
The Plaintiff has filed a motion to reconsider the court's September 15, 2010 court order granting summary judgment for Defendants Benton and Walker. Reconsideration of an court order may be appropriate when the facts or law on which the decision was based change significantly after issuance of the order, or when the court has misunderstood a party, made a decision outside the adversarial issues presented by the parties, or made an error not of reasoning but of apprehension. Bank of Waunakee v Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). Motions to reconsider serve a limited function: "to correct manifest errors of law or fact or to present newly discovered evidence." Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
The Plaintiff argues that both Defendants were personally involved in his Eighth Amendment claim because he sent a letter to Defendant Walker's office and Defendant Benton read his grievance. The court did not address the issue of whether either of these individuals was personally responsible for his claims. In the dispositive motion, the Defendants had first argued that the Plaintiff had not exhausted his administrative remedies as required before bringing his lawsuit. See 42 U.S.C. §1997e(a). The court had to consider this initial requirement before considering the merits of the Plaintiff's claims. The Defendants presented evidence that the Plaintiff had not completed the grievance process. The Plaintiff provided no evidence to rebut this claim, and has provided nothing new in his motion to reconsider. The motion to reconsider is therefore denied. [d/e 60].
The Plaintiff again states in his motion that it is not fair for the Defendants to have counsel while he represents himself. The Plaintiff also says he needs his medical file and additional information to prove that the Defendants were deliberately indifferent to his serious medical condition. As the court has explained, the Plaintiff has no constitutional or statutory right to appointment of counsel in this case. See December 2, 2008 Merit Review Order; May 8, 2009 Text Order; October 27, 2010 Text Order. The Plaintiff must pass the initial hurdle of exhaustion of administrative remedies before he can proceed with his case. The Plaintiff is an experienced litigator and the issue of exhaustion is not complex. See Bone v. Walker, Case No. 07-1353 in the Central District of Illinois; Bone v. Wright, Case No. 08-6939 and Jordan v Peters, Case No. 95-4163 (multi-plaintiff action) in the Northern District; and Pinex v Kloth, Case No. 92-446 (multi-plaintiff action that proceed to trial) in the Southern District. The court also notes that the Plaintiff successfully exhausted his administrative remedies in his previous lawsuit in the Central District of Illinois.
III. MOTION FOR SUMMARY JUDGMENT
The court informed the Plaintiff that although he had filed a motion to reconsider the September 15, 2010 court order, he still had to file a response to Defendant Zhang's motion for summary judgment on the issue of exhaustion of administrative remedies. See October 27, 2010 Text Order. The Court gave the Plaintiff additional time to file a response, but the Plaintiff has chosen not ...