Harris v. Butler et al

Filing 267

ORDER DENYING 263 MOTION for Reconsideration re 258 Order, Terminate Motions filed by Larry G Harris. Signed by Magistrate Judge Reona J. Daly on 9/27/2018. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY G. HARRIS,

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Plaintiff,
v.
KIMBERLY BUTLER, et al.,
Defendants.

Case No. 3:14-cv-498-RJD

ORDER
DALY, Magistrate Judge:
I.

PROCEDURAL BACKGROUND

Plaintiff Larry G. Harris, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were
violated.

On February 14, 2018, this Court granted Defendant Dr. Shearing’s motion for

summary judgment on Plaintiff’s retaliation, conspiracy, and deliberate indifference claims. In
particular, as it relates to Plaintiff’s deliberate indifference claim, the Court found insufficient
evidence to establish that Defendant Shearing’s denial of Plaintiff’s request for a non-soy diet
exacerbated or contributed to the symptoms of Plaintiff’s Hashimoto’s disease.

Generally,

familiarity with the claims is presumed and the evidence in the record was fully set forth in the
Court’s February 14, 2018 Order.
This matter is now before the Court on Plaintiff’s Motion for Reconsideration (Doc. 263).
In his motion (presumably directed solely at his deliberate indifference claim), Plaintiff asserts that
he has newly acquired medical records that either establish, or creates a question of fact, as to
whether or not Plaintiff suffers from a soy allergy. This new evidence consists of a January 10,
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2018 Progress Note, wherein Licensed Nurse Practitioner Bramlett noted that “when eating soy
will have breathing issues” and indicated “allergy: soy” in her assessment of Plaintiff (see Doc.
263-2 at 2). Plaintiff has also provided a medical record dated September 20, 2017, wherein it
was noted that Plaintiff had a swelling of his throat (see id. at 3). Plaintiff urges the Court to
reconsider its summary judgment order on this basis as the medical records were newly discovered,
Plaintiff was diligent in discovering them, and the evidence is not cumulative or impeaching.
Plaintiff argues that this evidence challenges whether there is a question of fact on whether Plaintiff
has a soy allergy and, if so, he could have reasonably suffered from the same when he saw
Defendant Shearing in 2013, which bears on the question of whether Defendant should have had
Plaintiff retested for a soy allergy rather than rely on previous tests indicating he did not in fact
have a soy allergy.
Defendants oppose Plaintiff’s motion, arguing that the January 10, 2018 notation
concerning a soy allergy was only based on Plaintiff’s subjective complaint (see Declaration of
Cassie Barmlett, LPN, Doc. 266-1 at ¶ 5). Moreover, Defendants explain that the overwhelming
evidence (and only objective evidence) in this case supports a finding that Plaintiff does not suffer
from a soy allergy and he should not be allowed to create new evidence based on a self-serving
statement contained in a medical record. Defendants argue that the new legal theory set forth by
Plaintiff contradicts his previous summary judgment briefing in which Plaintiff specifically stated
that he “is not claiming that he suffers from a soy allergy. This is merely a straw man” (see Doc.
247 at 12).
II.

LEGAL STANDARD

Although Plaintiff fails to cite the particular rule that serves as the basis for his motion, the
Court finds that given his request and the timing thereof, Federal Rule of Civil Procedure 60(b)
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controls. It is well settled that relief pursuant to Rule 60(b) is an extraordinary remedy and is
granted only in exceptional circumstances. McCormick v. City of Chicago, 230 F.3d 319, 327
(7th Cir. 2000) (citation omitted). Under Rule 60(b), a court may relieve a party from an order
where there is “mistake, inadvertence, surprise, or excusable neglect,” “newly discovered evidence
that, with reasonable diligence could not have been discovered in time to move for a new trial,” or
“fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” FED. R. CIV. P. 60(b). “Motions for reconsideration serve a limited function:
to correct manifest errors of law or fact or to present newly discovered evidence.” Rothwell
Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987).
III.

DISCUSSION

The evidence Plaintiff relies on in his motion is insufficient to serve as a basis for
reconsideration. First, although there is a note in Plaintiff’s January 20, 2018 medical record
indicating “allergy: soy,” Ms. Bramlett, the nurse who created the note, has explained that it was
written to capture Plaintiff’s subjective complaint of a soy allergy and was not based on any
objective observations or testing. Moreover, at the summary judgment stage, Plaintiff made it
clear that this matter and his allegations were not related to any soy allergy. Indeed, at his
deposition, Plaintiff testified that “this is not about a soy allergy. I’m not allergic to soy. I have
Hashimoto’s Thyroiditis disease. It is a whole different medical question. It is not about an allergy.
Okay? Allergy does not play into this” (Doc. 248-4). Now, despite Plaintiff’s testimony that left
no question he was not pursuing any claim related to his soy allergy, he attempts to insert a new
legal issue into this case based on a subjective claim of a soy allergy. This is not an appropriate
basis on which to seek reconsideration. For these reasons, Plaintiff’s Motion is DENIED.
IT IS SO ORDERED.
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DATED: September 27, 2018
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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