McDonald v. Veath et al

Filing 32

ORDER denying 13 Motion for Reconsideration ; denying 13 Motion to Appoint Counsel. Signed by Judge J. Phil Gilbert on 1/15/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAURICE J. McDONALD, # B-42547,
Plaintiff,
vs.
TIM VEATH, M. ATCHINSON,
S.A. GODINEZ, and DR. SHEPARD,
Defendants.

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Case No. 12-cv-1183-JPG-PMF

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court on Plaintiff’s “Rule 59(e) or Rule 60(b) Motion to
Respond to Judge Memorandum and Order” (Doc. 13), which has been docketed as a Motion for
Reconsideration and Motion for Counsel. The motion was filed with this Court on December 10,
2012. It is directed toward this Court’s December 3, 2012, order (Doc. 7) which referred
Plaintiff’s medical deliberate indifference claims to U.S. Magistrate Judge Frazier for further
consideration, severed the fondling claim against Defendant Maue into a separate action (now
docketed as McDonald v. Maue, Case No. 12-cv-1257-JPG), and dismissed several other claims
and Defendants.
Plaintiff’s motion invokes both Rule 59(e) and Rule 60(b) of the Federal Rules of Civil
Procedure. Because the motion was filed within 28 days of the order he challenges, either Rule
may be applied. See Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) ( “whether 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”).
A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be granted if
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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), reh’g
and suggestion for reh’g en banc denied, cert. denied 519 U.S. 1040; 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); ParkeChapley 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).”).
Plaintiff’s motion chiefly takes issue with this Court’s determination that he failed to
state a claim against Defendant Maue for deliberate indifference to Plaintiff’s serious medical
needs, and with the severance of the sexual fondling claim against Defendant Maue into a
separate action. He argues that Defendant Maue should remain in the original case because “no
defendant can act without Defendant C/O Maue” (Doc. 13, pp. 2, 4-5). This allegation was not
included in the original complaint, and it does not qualify as “newly discovered evidence” that

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might be introduced via a Rule 59(e) motion. Not only does the Court find this claim highly
dubious, even if it were true that Defendant Maue has authority to control the other Defendants,
there is no supervisory liability in a § 1983 action. See Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001). Plaintiff further protests that under a “proximate cause” theory, Defendant
Maue cannot be severed from this case (Doc. 13, p. 3). However, as explained in this Court’s
previous order, the relevant consideration is whether a defendant is personally, directly
responsible for a violation of an inmate’s constitutional rights. Plaintiff’s complaint did not
establish that Defendant Maue had any direct involvement in the incident of October 30, 2012,
when Plaintiff was ordered to climb stairs. And on October 26, when Plaintiff and Defendant
Maue had the confrontation in Plaintiff’s cell, a wheelchair was brought by another guard and
Plaintiff was not required to engage in any activity that would place him at risk.
Plaintiff’s motion includes additional facts regarding incidents when he was required to
walk in excess of his medical orders on November 26, 27, and December 6, 2012. Each of these
incidents occurred after this case was filed. This information may be relevant to a determination
on Plaintiff’s pending request for injunctive relief, but must ultimately be incorporated into a
properly filed amended complaint if they are to be considered in this action. See FED. R. CIV. P.
15(a); SDIL Local Rule 15.1. However, nothing in the motion supports a claim that Defendant
Maue denied Plaintiff medical attention on October 26, 2012, or on any other occasion, or that he
caused Plaintiff any bodily harm in connection with his post-surgical medical condition.
To summarize, Plaintiff has not shown any mistake of law or fact, or presented any newly
discovered evidence, that would entitle him to an altered or amended order under Rule 59(e).
Nor has he stated any grounds for relief within the scope of Rule 60(b). Upon review of the
record, the Court remains persuaded that its ruling dismissing the deliberate indifference claim

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against Defendant Maue and severing the fondling claim against him into a separate case was
correct. Therefore, the Motion for Reconsideration (Doc. 13) is DENIED. A separate order
shall issue in McDonald v. Maue, Case No. 12-cv-1257-JPG, regarding payment of the filing fee
in that action.
Motion for Appointment of Counsel
Plaintiff’s request for counsel appears in the caption of his motion. He does not mention
this request further in the body of the motion, and he does not indicate what efforts he may have
made to secure counsel before filing the motion. There is no constitutional or statutory right to
appointment of counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir.
2010). Federal District Courts have discretion under 28 U.S.C. § 1915(e)(1) to request counsel
to assist pro se litigants. Id. When presented with a request to appoint counsel, the Court must
consider: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself [.]” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007).
With regard to the first step of the inquiry, there is no indication whether Plaintiff has
attempted to obtain counsel on his own, or has been effectively precluded from doing so.
Because Plaintiff has not made this showing, the Court finds that Plaintiff has not made a
reasonable attempt to find counsel. Therefore, Plaintiff’s motion for the appointment of counsel
is DENIED without prejudice. The motion may be renewed at a later stage in the litigation.
IT IS SO ORDERED.
DATED: January 15, 2013
s/ J. Phil Gilbert
U.S. District Judge

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