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Cullum v. Davis

United States District Court, S.D. Illinois

November 7, 2016

DETRICK CULLUM, #M-22036, Plaintiff,
C/O DAVIS, C/O NALLEY, and LT. LOUIS BROWDER, Defendants. v.


          STACI M. YANDLE, United States District Judge.

         This matter is before the Court on Plaintiff Cullum's Motion for Reconsideration (Doc. 27). The motion was filed on February 22, 2016, within 28 days of the Order for which reconsideration is sought (Doc. 22).

         Legal Standard

         Technically, a "Motion to Reconsider" does not exist under the Federal Rules of Civil Procedure. The Seventh Circuit has held, however, that a motion challenging the merits of a district court order will automatically be considered as having been filed pursuant to either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994). "[W]hether a motion filed within [28] days of the entry of judgment should be analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on the timing or label affixed to it." Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (emphasis in original) (citing Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006) (clarifying that "the former approach-that, no matter what their substance, all post-judgment motions filed within [28] days of judgment would be construed as Rule 59(e) motions- no longer applies")). Nevertheless, a motion to reconsider filed more than 28 days after entry of the challenged order, "automatically becomes a Rule 60(b) motion." Talano v. N.W. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001) (citation omitted).

         A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be granted if a movant shows there was a mistake of law or fact or presents newly discovered evidence that could not have been discovered previously. Matter of Prince, 85 F.3d 314 (7th Cir. 1996); Deutsch v. Burlington N. R.R. Co., 983 F.2d 741 (7th Cir. 1993).

         Rule 60(b) permits a court to relieve a party from an order or judgment based on such grounds as mistake, surprise or excusable neglect by the movant; fraud or misconduct by the opposing party; a judgment that is void or has been discharged; or newly discovered evidence that could not have been discovered within the 28-day deadline for filing a Rule 59(b) motion. Fed.R.Civ.P. 60(b)(1). However, the reasons offered by a movant for setting aside a judgment under Rule 60(b) must be something that could not have been employed to obtain a reversal by direct appeal. See, e.g., Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989) ("an appeal or motion for new trial, rather than a FRCP 60(b) motion, is the proper avenue to redress mistakes of law committed by the trial judge, as distinguished from clerical mistakes caused by inadvertence"); Swam v. U.S., 327 F.2d 431, 433 (7th Cir.), cert, denied, 379 U.S. 852 (1964) (a belief that the Court was mistaken as a matter of law in dismissing the original petition does "not constitute the kind of mistake or inadvertence that comes within the ambit of rule 60(b).").

         Plaintiffs motion was filed within 28 days of the order he challenges, therefore, either Rule 59(e) or Rule 60(b) may be applied. Plaintiff asserts that the Court made a mistake of fact which led to the dismissal of Defendant Nalley. Accordingly, the Court construes the motion as having been brought pursuant to Rule 59(e).


         In his Complaint, Cullum alleged that Defendant Davis had a routine practice of slamming the door on him and fellow inmates each day as they attempted to exit the housing unit for breakfast (Doc. 16 at 8). On July 22, 2014, Cullum and fellow inmates expressed dissatisfaction with this practice and asked to speak with a supervisor (Id.). Davis denied that request and did not allow the inmates to proceed to chow (Id.). During the course of the morning, the inmates succeeded in relaying their complaints about Davis' conduct to another prison official who said she would report it (Id. at 9).

         Shortly thereafter, Defendant Browder showed up at Cullum's cell and told him he was being taken to segregation (Id.). He and three other inmates were ultimately taken to segregation on "investigative status" in connection with the morning's events (Id.). Cullum alleges that while in investigative segregation, Defendant Nalley attempted to turn the three other inmates against him (Id.). Nalley's efforts cause Plaintiff fear, though his fears never came to fruition and he did not suffer harm (Id. at 10-11). Ultimately, Plaintiff and the three others received disciplinary infractions as a result of the incident with Davis, including lost commissary and recreation privileges, segregation, C-grade status and disciplinary transfers to other IDOC facilities (Id. at 11-12). All four inmates that received discipline for the July 22, 2014 incident were African American, while two to four other white inmates were not disciplined over the incident (Id.).

         For screening purposes, this Court divided Cullum's Complaint into seven distinct counts, dismissing the only count it enumerated against Defendant Nalley-Count 6 for failure to protect from Davis's conduct (Doc. 22 at 4-5).

         In his Motion for Reconsideration, Plaintiff asserts that dismissal of Nalley was erroneous (Doc. 27 at 1-3). Specifically, Plaintiff contends that the Court's enumeration of the counts was mistaken to the extent that it associated two counts solely with Defendant Davis for issuing a disciplinary ticket to Plaintiff (Counts 2 and 3) (Doc. 22 at 4). Plaintiff alleges that Defendants Davis and Nalley were co-conspirators in the issuance of the disciplinary tickets and thus they both participated in the conduct outlined in Counts 2 and 3 (Doc. 27 at 1-3). Plaintiff alleged conspiracy in his original Complaint and those allegations of conspiracy are consistent with the allegations in his Motion to Reconsider (Doc. 16 at 14-15; Doc. 27 at 1-3). Plaintiff supports his assertion with copies of the disciplinary ticket which reflects Nalley as the reporting officer (Id. at 5-8).

         Cullum has shown a mistake of fact by the Court in screening Counts 2 and 3 in so much as the Court inferred that Defendant Davis issued the disciplinary tickets related to the incident on July 22, 2014. The evidence Collum proffered along with his Motion to Reconsider clearly reflects that Defendant Nalley issued the disciplinary tickets (Doc. 27 at 5-8). Accordingly, Counts 2 and 3 shall be amended to reflect Defendant Nalley's participation in issuing the disciplinary tickets. However, rather than just adding Defendant Nalley, it is appropriate for the Court to also consider if Defendant Davis was mistakenly named in these counts.

         As to Count 2, Defendant Davis did not issue the ticket, so he cannot be responsible under Count 2 as presently framed by the Court ("Fourteenth Amendment equal protection claim against Defendant Davis for issuing disciplinary tickets only against Collum and other African American inmates following the incident on July 22, 2014, while not issuing disciplinary tickets to white inmates who engaged in the same conduct as Collum on the same day.") However, it is feasible that Defendant Davis ...

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