United States District Court, S.D. Illinois
ERICK D. CONWAY, # B-69610, Plaintiff,
RANDOLPH COUNTY ILLINOIS, et al., Defendants.
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
and Procedural History
currently incarcerated at Menard Correctional Center
(“Menard”), has brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983. This
matter is before the Court on the Court's prior Show
Cause Order and Plaintiff's Motion to Reconsider. (Doc.
filed suit on July 5, 2017. (Doc. 1). Contemporaneously, he
filed a Motion for Leave to Proceed in forma pauperis
(“IFP”). (Doc. 2). He filed a second Motion to
Proceed IFP on July 10, 2017. (Doc. 5). The Court denied
Plaintiff leave to proceed IFP on July 28, 2017 because
Plaintiff did not disclose his litigation history in his
motion, including 4 prior lawsuits where a strike had been
assessed pursuant to 28 U.S.C. § 1915(g), and because
the Court did not find that Plaintiff was in imminent danger
so as to except him from the 3-strikes rule. (Doc. 8).
Petitioner was directed to pay the full $400 filing fee and
to show cause why his case should not be dismissed as a
sanction for misleading the court. (Doc. 8). Plaintiff filed
the instant Motion to Reconsider/Show Cause on August 10,
2017. (Doc. 9). To date, Plaintiff has not paid the $400
noted in the Court's Show Cause Order, Plaintiff's
allegations involve medical treatment he received at Menard
for a broken jaw he suffered on March 30, 2017. (Doc. 1, p.
10). Although a broken jaw can be present a serious medical
need, Plaintiff's Complaint indicates that the staff at
Menard has sent him to an outside hospital for surgery on two
occasions, suggesting that his treatment is on-going. (Doc.
1, pp. 12, 16). The gravamen of the Complaint is the delay in
securing treatment initially and medical staff's decision
to allegedly return Plaintiff to general population
prematurely. (Doc. 1, p. 10-12, 16). While in general
population, Plaintiff got into another fight, which
re-injured his broken jaw, necessitating additional surgery.
(Doc. 1, pp. 15-16). The Court found that the Complaint only
addressed allegations of past harm, and as such, did not meet
the imminent danger exception. (Doc. 8, p. 4).
motion takes issue with the Court's conclusion that
Plaintiff is not in immediate danger of imminent harm.
Specifically, Plaintiff argues that his placement in the
Menard infirmary places him in imminent danger of harm
because infirmary staff had prematurely returned him to
general population once before and were likely to do so
again. (Doc. 9, p. 3). If returned to general population, the
other inmates would place Plaintiff in imminent danger of
re-injuring his jaw. (Doc. 9, p. 4). Plaintiff's latest
filing with the Court, dated November 1, 2017, indicates that
he is still in the healthcare unit. (Doc. 15, p. 2).
Motion to Reconsider also indicates that it is also
Plaintiff's response to the Court's Show Cause Order.
(Doc. 9, p. 1). He argues that his case should not be
dismissed for misleading the Court because the form asks
whether Plaintiff had filed other lawsuits related to his
imprisonment, and Plaintiff interpreted that to include only
Eighth Amendment claims regarding prison conditions. (Doc. 9,
p. 5). Plaintiff asserts that none of his prior lawsuits or
strikes involved prison conditions, and that therefore, he
did not think it was necessary to describe them, nor did he
intend to mislead the Court. Id.
Plaintiff has adequately shown cause for his failure to
disclose his litigation history is a close call. Plaintiff
claims that the standard form contains ambiguous
language-that he did not understand the phrase
“relating to your imprisonment” to refer to his
previously-dismissed § 1983 cases raising alleged
problems with his conviction. But the Court is skeptical of
Plaintiff's claim for a number of reasons.
Plaintiff's prior lawsuits alleged that he shouldn't
be imprisoned at all, and therefore arguably
“related” to his imprisonment. Additionally, the
Central District explicitly instructed Plaintiff on at least
2 occasions that “if a prisoner has had a total of
three federal cases or appeals dismissed as frivolous,
malicious, or failing to state a claim, he may not file suit
in federal court without prepaying the filing fee unless he
is in imminent danger of serious physical injury.”
Despite this clear statement, Plaintiff moved for IFP in this
case without disclosing his strikes, even though he was on
notice that his prior strikes excluded him from proceeding
IFP unless he could meet the imminent danger exception.
Moreover, Plaintiff's argument that the Court should have
interpreted the Complaint as showing imminent danger suggests
that he was well aware of how the strike requirement works.
said, the Court accepts Plaintiff's explanation that he
has never filed a case based on his conditions of confinement
and reasonably interpreted the language to refer to only
those types of cases. As such, Plaintiff has shown cause and
the Court will not dismiss this case as a sanction for
failure to disclose litigation history. Plaintiff is
explicitly warned that in the future, he must disclose his
strikes in any litigation filed while he is a prisoner in
which he seeks to proceed IFP. That means that Plaintiff
must provide at least the following case names and numbers to
the Court: Conway v. The County of Winnebago, Case
No. 07-cv-50108 (N.D. Ill., dismissed August 8, 2007);
Conway v. McDougall, et al, Case No. 06-cv-50022
(N.D. Ill., dismissed February 17, 2006); Conway v.
Kapala, et al, Case No. 00-cv-50411 (N.D. Ill.,
dismissed February 2, 2001); and Conway v. McGraw, et
al, Case No. 16-cv-1229-SEM-TSH (C.D. Ill., dismissed
September 30, 2016). Failure to do so will result in
has also requested that the Court reconsider its ruling that
he failed to adequately allege imminent danger. The Federal
Rules of Civil Procedure do not explicitly contemplate
motions to reconsider. However, the Seventh Circuit has
approved of district courts construing motions pursuant to
the standards in Rule 59(e) or Rule 60(b) if it appears a
party is requesting relief available under those rules.
U.S. v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992)
(“Though [Deutsch] fails to cite any rule as the basis
for his motion, the fact that it challenges the merits of the
district court's decision means that it must fall under
either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil
59(e) provides a basis for relief, where a party challenges
the Court's application of the law to the facts of the
case. See Osterneck v. Ernst & Whinney, 489 U.S.
169, 174-76 (1989)(concluding that Rule 59(e) was intended to
apply to the reconsideration of matters encompassed within
the merits of a judgment); McKinney v. United
States, 2008 WL 2557470 at *2 (S.D. Ill. June 24, 2008).
While Rule 59(e) permits a district court to exercise its
discretion to correct its own errors, sparing the time and
expense of further proceedings at the appellate level,
Divane v. Krull Elec. Co. Inc., 194 F.3d 845, 848
(7th Cir. 1999), “ill-founded requests for
reconsideration of issues previously decided . . . needlessly
take the court's attention from current matters and visit
inequity upon opponents who, prevailing in an earlier
proceeding, must nevertheless defend their positions again
and again.” Berger v. Xerox Ret. Income Guar.
Plan, 231 F.Supp.2d 804, 820 (S.D. Ill. 2002).
Typically, Rule 59(e) motions are granted upon a showing of
either newly discovered evidence not previously available or
evidence in the record that clearly establishes a manifest
error of law or fact. Sigsworth v. City of Aurora,
Ill., 487 F.3d 506, 511-12 (7th Cir. 2007); Romo v.
Gulf Stream Coach, Inc., 250 F.3d 1119, 1121 n.3 (7th
Cir. 2001). “‘[M]anifest error' is not
demonstrated by the disappointment of the losing party. It is
the wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000)(internal citations omitted). A proper motion to
reconsider does more than take umbrage and restate the
arguments that were initially rejected during the summary
judgment phase. County of McHenry v. Ins. Co. of the
West, 438 F.3d 813, 819 (7th Cir. 2006); Ahmed v.
Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004);
Oto, 224 F.3d at 606.
60(b) contains a more exacting standard than Rule 59(e),
although it permits relief from a judgment for a number of
reasons including mistake or “any other reason
justifying relief from the operation of judgment.”
Fed.R.Civ.P. 60(b). However, in contrast to Rule 59(e), legal
error is not an appropriate ground for relief under Rule
60(b). Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.
2002) (“A contention that the judge erred with respect
to the materials in the record is not within Rule 60(b)'s
scope, else it would be impossible to enforce time limits for
appeal.”). Relief under Rule ...