Barrow v. Wexford Health Sources, Inc. et al
Filing
264
ORDER: Plaintiff Ronald Barrow's Motion for Leave to File Supplemental Authority (Doc. 248) is GRANTED, Plaintiff's Motion Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to Alter or Amend (Doc. 243) is DENIED, and Plaintiff 's Motion for Federal Rule of Civil Procedure 54(b) Certificate (Doc. 247) is DENIED. Furthermore, because the Court declines to certify its order for appeal, Plaintiff's Motion for Leave to Appeal in forma pauperis (Doc. 256) is also DENIED. Signed by Judge Nancy J. Rosenstengel on 4/7/2017. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD BARROW,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC.,
DR. ROBERT SHEARING, and DR.
J. TROST,
Defendants.
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Case No. 3:14-CV-00800-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on several motions filed by Plaintiff Ronald
Barrow relating to the Court’s entry of summary judgment, in part, in favor of
Defendants Wexford Health Sources, Inc. (“Wexford”) and Dr. J. Trost (Doc. 240).
Barrow has filed a motion to alter or amend the order pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure (Doc. 243), a motion to certify the order for appeal
pursuant to Rule 54(b) (Doc. 247), and a motion for leave to proceed in forma pauperis on
appeal (Doc. 256). For the reasons set forth below, Barrow’s motions are denied.
BACKGROUND
Barrow, an inmate of the Illinois Department of Corrections (“IDOC”) housed at
Menard Correctional Center, initiated this action pursuant to 42 U.S.C. § 1983 alleging
that Defendants were deliberately indifferent to his chronic medical conditions in
violation of the Eighth Amendment. After threshold review of his Complaint pursuant
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to 28 U.S.C. § 1915A, Barrow was permitted to proceed on six counts of deliberate
indifference. Defendant Wexford was named in all six counts, while Defendants Dr. John
Trost and Dr. Robert Shearing were only named in Counts 2 through 5.
On July 15, 2016, Defendants timely filed a motion for summary judgment
arguing they were entitled to judgment as a matter of law on various grounds (Doc. 176).
On March 1, 2017, the Court granted Defendants’ motion in part (Doc. 240), entering
summary judgment as to Wexford on Count 1 (Barrow’s claim that Wexford had a policy
or practice of elevating cost over the care and wellbeing of its patients) and dismissing
Counts 2 through 6 as they pertained to Wexford. The Court also granted summary
judgment to Defendant Dr. Trost on Counts 3, 5, and 6 (denial of treatment for his
chronic back, knee, and shoulder problems). Summary judgment was denied as to
Defendant Dr. Trost on Count 2 (denial of access to prescription medications) and
Count 4 (denial of treatment for chronic rectal bleeding), as well as on Counts 2 through
6 as to Defendant Dr. Shearing.
On March 8, 2017, Barrow filed a “Motion Pursuant to Fed. R. Civ. P. 59(e) to Alter
or Amend [Doc. 240] Memorandum and Order Filed March 1, 2017” (Doc. 243). A few
days later, before the Court ruled on his motion to alter or amend, Barrow filed a motion
to certify the summary judgment order pursuant to Rule 54(b) of the Federal Rules of
Civil Procedure (Doc. 247). On March 17, 2017—before the Court ruled on either his
motion to alter or amend or his motion to motion to certify the summary judgment order
as a final, appealable order—Barrow filed a “Petition for Permission to Appeal”
pursuant to 28 U.S.C. § 1292(b) (Doc. 250), which was captioned in the Seventh Circuit
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Court of Appeals and docketed by the Clerk of Court as a Notice of Appeal. Barrow also
filed a motion to proceed in forma pauperis on appeal on March 22, 2017 (Doc. 256).
DISCUSSION
A.
Motion to Alter or Amend Pursuant to Rule 59(e)
The Court begins its analysis with Barrow’s Motion to Alter or Amend pursuant
to Rule 59(e) (Doc. 243), because a ruling in Barrow’s favor on this motion would render
the remaining motions moot.
Rule 59(e) permits the Court to amend a judgment only where the movant clearly
establishes: “(1) that the court committed a manifest error of law or fact, or (2) that newly
discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722
F.3d 939, 954 (7th Cir. 2013) (quoting Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587,
598 (7th Cir. 2012)). A manifest 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)
(citation and quotation marks omitted). Relief under this rule is an extraordinary remedy
“reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).
“The decision whether to grant or deny a Rule 59(e) motion is entrusted to the sound
judgment of the district court.” Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).
In his motion, Barrow takes issues with several of the Court’s findings. First, he
claims the Court abused its discretion when it refused to consider the substantial
amount of irrelevant documents presented by Barrow or to address each and every
factual dispute (Barrow disputed nearly all of Defendants’ facts) and only address
genuine issues of material facts. Barrow claims the Court’s failure to address his
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disputed facts and documents in support, and to construe this evidence in the light most
favorable to him, was manifestly erroneous and prejudiced him.
Barrow’s argument ignores the summary judgment standard. Under Rule 56(c) of
the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c) (emphasis
added). Under this standard, only disputes about material facts—that is, disputes about
facts that are of consequence in determining the outcome of the case—are relevant.
Therefore, the Court properly disregarded any disputed facts that were not material to
the outcome of the case.
Furthermore, the facts Barrow alleges the Court disregarded were actually noted
as being disputed. For example, Barrow complains that the Court erroneously stated
“Barrow did not complain about pain” during his visit to Dr. Trost on February 28, 2014.
In actuality, the Court stated that Barrow disputed Dr. Trost’s version of the events,
claiming that the visit was rushed and he only had a few minutes to talk about his issues
(Doc. 240, p. 8). The Court’s assessment of the evidence is supported both by evidence of
Barrow’s medical records (see Doc. 177-2, p. 6) and evidence of a letter Barrow sent Dr.
Trost where he says he informed Dr. Trost of his medical issues in a previous letter but
was only allowed a few minutes to address them at the visit on February 28, 2014
(Doc. 200-1, p.65). Thus, the Court’s statement of fact was accurate. Moreover, contrary
to Barrow’s argument, the Court construed the facts in the light most favorable to
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Barrow. Indeed, in its discussion the Court noted that “Barrow saw Dr. Trost for the first
time on February 28, 2014, and briefly discussed his back pain with the doctor”
(Doc. 240, p. 19).
Barrow goes on to dispute the Court’s consideration of various other facts, as well
as references to his “letter writing campaign.” He fails, however, to demonstrate how
any of his complaints rise to the level of manifest error, i.e., the wholesale disregard,
misapplication, or failure to recognize controlling precedent. He further argues that the
Court failed to “assume the truth of Plaintiff’s evidence” and draw all inferences in his
favor. But the Court cannot simply assume the truth of Barrow’s statements, for
“[s]elf-serving assertions without factual support in the record will not defeat a motion
for summary judgment.” Jones v. Merchants Nat’l Bank & Trust Co., 42 F.3d 1054, 1057
(7th Cir. 1994); see also First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d
1007, 1011 (7th Cir. 1985) (“Conclusory statements in affidavits opposing a motion for
summary judgment are not sufficient to raise a genuine issue of material fact.”).
Barrow also protests the Court’s decision to strike his affidavit purporting to
analyze the contract between Wexford and IDOC, while also accepting an affidavit
authored by Joe Ebbitt, Director of Risk Management, HIPAA Compliance, and Legal
Affairs for Wexford. Barrow argues that Mr. Ebbitt was not disclosed in Defendants’
initial or supplemental disclosures. As discussed by the Court and by Defendants in
response to Barrow’s current motion, however, discovery in this case was governed by
the Court’s Scheduling and Discovery Order (Docs. 54, 155), which did not require the
disclosure of Mr. Ebbitt. Furthermore, Barrow has not identified any discovery requests
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he made seeking the disclosure of Mr. Ebbitt. And, while Mr. Ebbitt’s affidavit was made
upon personal knowledge of Wexford’s policies (he attested that he is familiar with
Wexford’s written Policies and Procedures as a result of his position at Wexford),
Barrow’s affidavit lacked any personal knowledge. It merely purported to analyze the
contract between Wexford and IDOC and included arguments rather than statements of
fact. Affidavits opposing summary judgment “must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” FED. R. CIV. P. 56(c)(4). Because Barrow’s
affidavit failed to meet these requirements, it was properly stricken.
Barrow further directs this Court to a recent decision from this district that he
claims is at odds with the order in this case. 1 In Gills v. Coe, the court held there was a
genuine issue of fact as to whether Wexford has a policy or practice of denying medical
care. See Gills v. Coe, No. 3:13-cv-791-DGW (S.D. Ill. Feb. 21, 2017). In that case, the
plaintiff suffered from an inguinal hernia and presented evidence, through Defendants’
deposition testimony, that Wexford had an unwritten policy of refusing surgery unless
the hernia was strangulated or incarcerated. Here, Barrow has not presented any
evidence indicating that Wexford had a policy of placing profits over the health and
wellbeing of its patients, as he alleged. Thus, his citation to Gills is unpersuasive.
The Court has reviewed the remainder of Barrow’s arguments and, likewise,
finds them meritless. Barrow has not identified any manifest errors of law committed by
Barrow’s motion for leave to file supplemental authority in support of his motion to alter or amend
(Doc. 248) is GRANTED.
1
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the Court, but rather only complains about the Court’s reasoning. Accordingly, Barrow’s
Motion to Alter or Amend Pursuant to Rule 59(e) is DENIED.
B.
Certification of Final Judgment under Rule 54(b)
The Court next addresses Barrow’s motion for certification of a final judgment
under Rule 54(b) (Doc. 247). Within this motion, Barrow incorporates the Petition for
Permission to Appeal that he filed with the Seventh Circuit Court of Appeals on March
13, 2017 (Doc. 250). Barrow asks the Court to also consider the arguments made in the
Petition in determining whether certification is appropriate.
The courts of appeals have authority to hear “appeals from all final decisions of
the district courts.” 28 U.S.C. § 1291. A decision is final and appealable when it “disposes
of all claims against all parties.” Dale v. Lappin, 376 F.3d 652, 654 (7th Cir. 2004). In
multiple party suits, an order dismissing one defendant while leaving claims against
other defendants pending is not a final, appealable order. House v. Belford, 956 F.2d 711,
716 (7th Cir. 1992) (citing Auriemma v. City of Chicago, 906 F.2d 312, 313 (7th Cir. 1990)). A
party may immediately appeal a non-final decision, however, when a partial final
judgment pursuant to Rule 54(b) is entered. Under Rule 54(b),
When an action presents more than one claim for relief . . . the court may
direct entry of a final judgment as to one or more, but fewer than all, claims
or parties only if the court expressly determines that there is no just reason
for delay. Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.
The rule creates “a practical means of permitting an appeal to be taken from one or more
final decisions on individual claims, in multiple claims actions, without waiting for final
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decisions to be rendered on all the claims in the case.” Sears, Roebuck & Co. v. Mackey, 351
U.S. 427, 435 (1956).
A district court must undergo a two-step analysis to determine whether Rule
54(b) certification is appropriate. Curtiss–Wright Corp. v. General Elec. Co., 446 U.S. 1, 7
(1980). First, a district court must determine whether the judgment on a claim to be
appealed is final. Id. “It must be a ‘judgment’ in the sense that it is a decision upon a
cognizable claim for relief, and it must be ‘final’ in the sense that it is ‘an ultimate
disposition of an individual claim entered in the course of a multiple claims action.’” Id.
(quoting Sears, Roebuck & Co., 351 U.S. at 436)). Second, a district court must determine
whether there is any just reason for delay. Id. at 8. In determining whether there is no just
reason to delay the appeal of individual claims, “a district court must take into account
judicial administrative interests as well as the equities involved.” Id. A district court
considers “such factors as whether the claims under review were separable from the
others remaining to be adjudicated and whether the nature of the claims already
determined was such that no appellate court would have to decide the same issue more
than once even if there were subsequent appeals.” Id.
“If an examination of the record reveals that the claims on appeal are too similar
to the issues remaining in the district court,” then there is no partial final judgment as
contemplated by Rule 54(b). Marseilles Hydro Power, LLC v. Marseilles Land & Water Co.,
518 F.3d 459, 463–64 (7th Cir. 2008). “At a minimum, claims cannot be separate unless
separate recovery is possible on each. . . . Hence, mere variations of legal theory do not
constitute separate claims . . . . Nor are claims so closely related that they would fall afoul
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of the rule against splitting claims if brought separately. . . .” Id. at 464 (quoting
Amalgamated Meat Cutters & Butcher Workmen v. Thompson Farms Co., 642 F.2d 1065, 1070–
71 (7th Cir. 1981)).
This analysis requires comparing the issues involved in the appealed claims and
those remaining in the district court and determining whether there is a “significant
factual overlap.” Id. (quoting Automatic Liquid Packaging, Inc. v. Dominik, 852 F.2d 1036,
1037 (7th Cir.1988)). The scope of Rule 54(b) is confined to “situations where one of
multiple claims is fully adjudicated—to spare the court of appeals from having to keep
relearning the facts of a case on successive appeals.” Id. (quoting Indiana Harbor Belt R.R.
Co. v. American Cyanamid Co., 860 F.2d 1441, 1444 (7th Cir. 1988). “[I]f there are different
facts (and of course different issues) consideration of the appeals piecemeal rather than
all at once will not involve a duplication in the efforts required of the judges to prepare
for argument in, and to decide, each appeal.” Id. (quoting Jack Walters & Sons Corp. v.
Morton Bldg., Inc., 737 F.2d 698, 702 (7th Cir. 1984)). Two claims arising from the same
event or occurrence may be separable for Rule 54(b) purposes if they rely on entirely
different legal entitlements yielding separate recoveries, rather than different legal
theories aimed at the same recovery. Id.
In this case, the Court dismissed all counts as to Wexford and Counts 3, 5, and 6
as to Dr. Trost. The Court acknowledges that the entry of summary judgment in favor of
Defendants on these claims was a “final” decision in the sense that it was an ultimate
decision upon a claim for relief entered in the course of a multiple claims action. See
Curtiss–Wright Corp., 446 U.S. at 7. Taking into account judicial administrative interests,
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however, the Court cannot say there is no just reason to delay the appeal. The claims
Barrow seeks to appeal are premised on the same facts as the claims remaining in this
case and on which he is proceeding to trial. Barrow’s claims against Dr. Trost related to
his alleged denial of prescription medication and his rectal bleeding stem from the same
set of facts on which Barrow based his now-dismissed claims. In fact, as Defendants
argue, each claim is a “mere variation” of the same legal theory—that Dr. Trost was
deliberately indifferent to Barrow’s medical needs. See Marseilles, 518 F.3d at 664. If the
dismissed claims were to proceed on appeal now, and Barrow later appeals the outcome
of his remaining claims, the appellate court would be required to duplicate its efforts by
reviewing the voluminous record twice in deciding each appeal. Accordingly, there is no
partial final judgment as contemplated by Rule 54(b) with regard to the claims against
Dr. Trost.
The Court comes to the same conclusion with regard to the claims against
Wexford. Barrow attempted to use the care he personally received by Dr. Shearing and
Dr. Trost in support of his claim that Wexford’s policies and practices are
unconstitutional. This Court held that, while a jury may find that Defendants’ actions
exhibited deliberate indifference, such isolated incidents do not add up to a pattern of
behavior sufficient to support an inference of a policy or custom (Doc. 240, p. 23). The
Court also relied on affidavits by Dr. Shearing and Dr. Trost related to their care of
Barrow and evidence of Barrow’s medical records to assess the severity of his chronic
conditions. In short, the Court of Appeals would be required to review the same
evidence that Barrow relies upon to support his remaining claims in this case. As such,
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the claims are not separate, and certification pursuant to Rule 54(b) is not appropriate in
this instance. Barrow’s Motion for Certification pursuant to Rule 54(b) is DENIED.
C.
Certification of Interlocutory Appeal Under 28 U.S.C. § 1292
Because Barrow incorporated the arguments made in his Petition for Permission
to Appeal, the Court next addresses his contention that the summary judgment order is
an appealable interlocutory order under both 28 U.S.C. § 1292(a)(1) and § 1292(b).
1.
An Interlocutory Appeal is Inappropriate Under 28 U.S.C. § 1292(a)(1)
Barrow first argues that the order granting summary judgment as to Wexford on
Counts 1 and 3 and as to Dr. Trost on Count 3 is clearly a denial of Barrow’s request for
injunctive relief in both his Complaint (Doc. 30) and his Motion for Preliminary
Injunction (Doc. 214). Thus, Barrow claims, the order is immediately appealable under
28 U.S.C. § 1292(a)(1).
Under § 1292(a)(1), “the courts of appeals shall have jurisdiction of appeals
from . . . [i]nterlocutory orders of the district courts of the United States . . . granting,
continuing, modifying, refusing or dissolving injunctions . . . .” 28 U.S.C. § 1291(a)(1). If
an order does not explicitly grant or deny a specific request for an injunction, the order
may still be appealable if it has the “practical effect” of doing so. Salazar ex rel. Salazar v.
D.C., 671 F.3d 1258, 1261–62 (D.C. Cir. 2012) (quoting Carson v. Am. Brands, Inc., 450 U.S.
79, 83 (1981)). Even if an interlocutory order has the “practical effect” of denying an
injunction, if it does not “dispose of all requests for injunctive relief,” a litigant must also
show that the order has a “serious, perhaps irreparable, consequence,” and that the
order can be “effectually challenged” only by immediate appeal. Brown v. Kerr-McGee
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Chem. Corp., 767 F.2d 1234, 1238 (7th Cir. 1985); S. Bend Consumers Club, Inc. v. United
Consumers Club, Inc., 742 F.2d 392, 393 (7th Cir. 1984); see also Carson, 450 U.S. at 84
(“Because § 1292(a)(1) was intended to carve out only a limited exception to the
final-judgment rule, we have construed the statute narrowly to ensure that appeal as of
right under § 1292(a)(1) will be available only in circumstances where an appeal will
further the statutory purpose of ‘permit[ting] litigants to effectually challenge
interlocutory orders of serious, perhaps irreparable, consequence.’”).
In this case, Barrow seeks a preliminary injunction ordering Defendants “to
provide community standard of care treatment for Plaintiff’s chronic lower back
degenerative disc disease, including physical therapy, lumbar epidural steroid
injections, adequate pain management with recommended medication, continual
monitoring and/or surgery, if necessary,“ and ordering that medical care be provided
by a provider other than Dr. Trost. The requested relief is directed at all three
Defendants. Thus, while the summary judgment order dismissing the claims against
Wexford and Count III as to Dr. Trost may have the practical effect of precluding the
grant of an injunction as to those Defendants, it did not dispose of all requests for
injunctive relief. Accordingly, Barrow is required to also demonstrate that the summary
judgment order has a “serious, perhaps irreparable, consequence,” and that the order
can be “effectually challenged” only by immediate appeal.
Barrow has not made such a showing, nor has he even attempted to do so. In fact,
Barrow relies on Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1147 (Fed. Cir. 2011),
which states that “a party appealing an order that expressly grants or denies a
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permanent injunction need not also demonstrate that the order will have a ‘serious,
perhaps irreparable consequence’ and that ‘the order can be effectively challenged only
by immediate appeal.’” Robert Bosch, 659 F.3d at 1147. The decision in Robert Bosch is not
binding on this Court, however, and it refers to orders “expressly” granting or denying a
permanent injunction, which this order did not do. Therefore, Barrow’s reliance on
Robert Bosch is misplaced.
Because Barrow has not made the required showing that the Court’s summary
judgment order has a serious, perhaps irreparable, consequence and can only be
effectually challenged by immediate appeal, an interlocutory appeal is not appropriate
pursuant to 28 U.S.C. §1291(a)(1).
2.
Barrow Has Not Met the Requirements for an Interlocutory Appeal Under
28 U.S.C. § 1292(b)
Section 1292(b) provides that a district court may certify for immediate appeal
interlocutory orders that present a “controlling question of law as to which there is
substantial ground for difference of opinion” whose resolution would “materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “There are four
statutory criteria for the grant of a section 1292(b) petition to guide the district court:
there must be a question of law, it must be controlling, it must be contestable, and its
resolution must promise to speed up litigation.” Ahrenholz v. Bd. of Trustees of Univ. of Ill.,
219 F.3d 674, 675 (7th Cir. 2000) (emphasis in original). Additionally, “the petition must
be filed in the district court within a reasonable time after the order sought to be
appealed.” Id. “Unless all these criteria are satisfied, the district court may not and
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should not certify its order to [the appellate court] for an immediate appeal under
section 1292(b).” Id. at 676.
As to the first requirement, the existence of a question of law, the Court of
Appeals has made clear that while an order granting or denying summary judgment, by
its nature, presents a question of law, “Section 1292(b) was not intended to make denials
of summary judgment routinely appealable.” Id. Rather, “question of law” refers to “a
question of the meaning of a statutory or constitutional provision, regulation, or
common law doctrine rather than to whether the party opposing summary judgment
had raised a genuine issue of material fact.” Id.
Construing Barrow’s pro se petition liberally, the first statutory requirement, that
there be a pure question of law suitable for resolution by the court of appeals, is met
here. In particular, the Court held that private corporations cannot be held liable under
42 U.S.C. § 1983 unless the constitutional violation was caused by an unconstitutional
policy or custom of the corporation itself; respondeat superior does not apply to private
corporations under § 1983 (Doc. 240, pp. 22, 25). In stating this principle of law, the Court
cited Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014), which questioned
whether corporations should be protected from respondeat superior liability under § 1983
but ultimately held that the law of this circuit still extends Monell 2 from local
governments to private corporations. Id. at 796. Barrow seeks to have the appellate court
reconsider that question, as it indicated it would be willing to do should the
Monell v. Department of Social Services, 436 U.S. 658 (1978), held that a plaintiff suing a local government
under § 1983 must show that the violation of his constitutional rights was caused by a government policy,
practice, or custom.
2
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circumstances present themselves. Accordingly, the Court finds Barrow has properly
articulated a question of law within the meaning of § 1292(b). 3
With regard to the second statutory requirement, a question of law is controlling
if it “is quite likely to affect the further course of the litigation, even if not certain to do
so.” Sokaogon Gaming Enter. Corp. v. Tushi-Montgomery Assocs., Inc., 86 F.3d 656, 659 (7th
Cir. 1996) (citing Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991) (referencing
decisions holding that a question is controlling “if interlocutory reversal might save time
for the district court, and time and expense for the litigants.”)). This is where Barrow’s
petition begins to falter. He has not argued how this question of law would affect the
course of litigation; indeed, it would only settle his claims as to Wexford, leaving his
dismissed claims against Dr. Trost unresolved. And while the third statutory
requirement—that the question of law be contestable—is surely met, given the Seventh
Circuit’s discussion in Shields, the fourth requirement—that an immediate appeal may
materially advance the ultimate termination of the litigation—is surely not. Allowing an
appeal on this issue alone will only serve to prolong the litigation and delay trial on the
remaining claims in this case.
For these reasons, the Court finds that Barrow has failed to meet his burden of
demonstrating that the summary judgment order should be certified for immediate
appeal pursuant to 28 U.S.C. § 1292(b).
Barrow also presents the question of whether a First Amendment exercise of religion claim, where no
injury needs to be shown, carries more importance than an Eighth Amendment claim of deliberate
indifference, which requires a higher burden, and whether this makes the two amendments unfairly
inequitable. Because this question is outside the record and scope of summary judgment in this case, the
Court will not address it.
3
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D.
Motion for Leave to Appeal in forma pauperis
Finally, Barrow also has filed a motion for leave to appeal in forma pauperis. A
federal court may permit a party to proceed on appeal without full pre-payment of fees
provided the party is indigent and the appeal is taken in good faith. 28 U.S.C.
§ 1915(a)(1) & (3); FED. R. APP. P. 24(a)(3); see also Walker v. O’Brien, 216 F.3d 626, 630-31
(7th Cir. 2009). In this instance, because the Court has declined to certify its order as a
final judgment under Rule 54(b) or for interlocutory appeal under 28 U.S.C. § 1292(a)(1)
or § 1292(b), Barrow’s motion to proceed in forma pauperis is also DENIED.
CONCLUSION
For the reasons stated above, Plaintiff’s motion for leave to file supplemental
authority in support of his motion to alter or amend (Doc. 248) is GRANTED, Plaintiff’s
Motion Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to Alter or Amend
(Doc. 243) is DENIED, and Plaintiff’s Motion for Federal Rule of Civil Procedure 54(b)
Certificate (Doc. 247) is DENIED. Furthermore, because the Court declines to certify its
interlocutory order for appeal, Plaintiff’s Motion for Leave to Appeal in forma pauperis
(Doc. 256) is also DENIED.
IT IS SO ORDERED.
DATED: April 7, 2017
s/Nancy J. Rosenstengel_____________
NANCY J. ROSENSTENGEL
United States District Judge
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