United States District Court, S.D. Illinois
MEMORANDUM AND ORDER.
M. YANDLE, United States District Judge.
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).
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  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  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).
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).
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).").
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
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).
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.).
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).
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.
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
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 ...