Smego et al v. Payne et al
Filing
165
OPINION (See Written Opinion): 1) The motion for reconsideration by Plaintiffs Duay, Lain, and Smego is granted (d/e 160 ). The Court's judgment is vacated only as to Plaintiffs Duay, Lain, and Smego, and only as to their claim that the de fa cto blanket ban on R-rated movies and M-rated video games violated their First Amendment rights. The clerk is directed to reopen this case. 2) Discovery is reopened and closes on December 31, 2012. Dispositive motions are due January 31, 2012. 3) The motion for reconsideration docketed as # 161 is denied a moot because it is a duplicate of # 160 .4) The motion for "relief of docketing statement" (d/e 162 ) is granted to the extent Plaintiff Smego seeks a copy of the docket sheet. The clerk is directed to send Plaintiff Smego a copy of the docket sheet. Entered by Judge Sue E. Myerscough on 8/21/2012. (VM, ilcd)
E-FILED
Tuesday, 21 August, 2012 08:54:36 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD SMEGO, et al.
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Plaintiffs,
v.
ANITA PAYNE, et al.,
Defendants.
09-CV-3244
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiffs, proceeding pro se, are detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons Act.
On June 9, 2011, Judge Baker granted summary judgment to Defendants’ on
Plaintiffs’ claim that a de facto blanket ban on R-rated movies and M-rated video
games violated their First Amendment rights. By the time Judge Baker made that
ruling, the policy had changed to allow some pre-approved movies and games, but
the new policy is not an issue in this case.
After Judge Baker’s order, the case remained open to allow for resolution of
a supplemental claim for retaliation. Subsequently, the case was transferred from
Judge Baker to the undersigned. Plaintiffs Duay, Lain, and Smego voluntarily
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withdrew from the remaining retaliation claim, but stayed in the case with regard to
the First Amendment claim. On February 7, 2012 the Court granted summary
judgment to Defendants on Plaintiffs’ remaining retaliation claim, and a final
judgment was entered that day.
On February 24, 2012, Plaintiffs Duay, Lain, and Smego moved for
reconsideration of Judge Baker’s June 2011 order granting summary judgment to
Defendants on the First Amendment claim. Their motion is brought under Fed. R.
Civ. P. 59(e), which must be filed within 28 days after the judgment. Federal Rule
of Civil Procedure 59(e) allows a court to change a judgment if warranted by
newly discovered evidence, a change in the law, or a “‘manifest error of law or
fact.’” Souter v. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, 993 F.2d 595, 599 (7th Cir.
1993)(quoted cited omitted). Plaintiffs’ motion meets the 28-day deadline with
regard to Judge Baker’s order since judgment was not entered until February 2012.
The other ten Plaintiffs have not filed a motion to reconsider or an appeal. Thus,
only Plaintiffs Smego, Duay, and Lain remain.
Plaintiffs Duay, Lain, and Smego argue in their motion that had no chance to
conduct discovery on the evidence presented by Defendants in their summary
judgment motion. Particularly, they assail Judge Baker’s reliance on an affidavit
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from Dr. Jumper, the clinical director at the facility, who is not a party to this
lawsuit. Plaintiffs argue that they had no opportunity to probe the foundation for
Dr. Jumper’s conclusions justifying the entertainment ban. They also argue that
Judge Baker should have determined whether Dr. Jumper’s affidavit satisfied the
Daubert test for expert testimony.
Plaintiffs’ recount of the record is somewhat misleading since they did have
seven months of discovery before Judge Baker stayed discovery and directed
Defendants to file a summary judgment motion on whether a blanket ban existed.
Additionally, Plaintiffs did not ask for more discovery to formulate a response to
the motion for summary judgment, as they could have done under Fed. R. Civ. P.
56(d). Instead, they challenged Dr. Jumper’s conclusions on their merits, making
essentially the same arguments Plaintiffs make now. Judge Baker addressed and
rejected those arguments, and the Court agrees with Judge Baker’s conclusions.
Further, Dr. Jumper is not a designated expert. He was personally involved in
implementing and applying the ban. He does not need to be qualified as an expert
to explain the reasons underlying a policy for which he is responsible.
However, Plaintiffs make a good procedural point. Judge Baker’s order
staying discovery stated that he wanted to first determine whether a blanket ban
even existed before determining how further discovery should proceed. (8/25/10
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Court Order, p. 1, d/e 83)(“The court must first determine whether there is in fact a
blanket ban before deciding the best way to proceed. Accordingly, the defendants
will be directed to file a summary judgment motion on this question only.”). His
order granting summary judgment went beyond whether a blanket ban existed to
address the constitutionality of that ban. Plaintiffs lacked sufficient notice and an
opportunity to conduct discovery on whether the blanket ban was rationally
supported by legitimate reasons. What that discovery might be is unclear, but
Plaintiffs should have the opportunity to conduct discovery. Accordingly,
Plaintiffs’ motion will be granted and this case will be reopened on the sole claim
that the de facto blanket ban violated the First Amendment rights of Plaintiffs
Smego, Duay, and Lain.
IT IS THEREFORE ORDERED:
1) The motion for reconsideration by Plaintiffs Duay, Lain, and Smego is
granted (d/e 160). The Court’s judgment is vacated only as to Plaintiffs Duay,
Lain, and Smego, and only as to their claim that the de facto blanket ban on Rrated movies and M-rated video games violated their First Amendment rights. The
clerk is directed to reopen this case.
2) Discovery is reopened and closes on December 31, 2012. Dispositive
motions are due January 31, 2012.
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3) The motion for reconsideration docketed as #161 is denied a moot
because it is a duplicate of # 160.
4) The motion for “relief of docketing statement” (d/e 162) is granted to the
extent Plaintiff Smego seeks a copy of the docket sheet. The clerk is directed to
send Plaintiff Smego a copy of the docket sheet.
ENTERED: August 21, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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