United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY, UNITED STATES DISTRICT JUDGE
27, 2016, this Court issued a Memorandum Opinion and Order
 granting in part and denying in part Defendants'
Motions for Summary Judgment  and . 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 . 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 , which
the Court granted on August 30, 2016. Minute Entry . For the
reasons stated below, State Defendants' motion is granted
in part and denied in part.
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).
State Defendants' Motion to Reconsider
Counts IV and V
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  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 (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.
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  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
 Attach. 19.
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  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  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  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.
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  Attach. 23 (emphasis added). On March 11, 2013,
Plaintiff underwent another mental health evaluation by Dr.
John Garlick (“Garlick”). PSOAF  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
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).
avers that Defendants' oversight constitutes waiver of
any qualified immunity defense. Pl.'s Resp. State
Defs.' Combined Mot. Reconsider and Sever  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
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 ...