Cullum et al v. Davis et al

Filing 34

ORDER granting 27 Motion for Reconsideration. The COMPLAINT shall receive further review as to DEFENDANT NALLEY, as set forth in this Memorandum and Order. The Clerk of the Court is DIRECTED to reinstate the Complaint (Doc. 16) against DEFENDANT NALLEY in Counts 2 and 3 as set forth in this Memorandum and Order. Signed by Judge Staci M. Yandle on 11/7/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DETRICK CULLUM, #M-22036,
Plaintiff,
vs.
C/O DAVIS, C/O NALLEY, and
LT. LOUIS BROWDER,

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CIVIL NO. 15-cv-00057-SMY-PMF

Defendants.

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is before the Court on Plaintiff Cullum’s Motion for Reconsideration (Doc.
27). The motion was filed on February 22, 2016, within 28 days of the Order for which
reconsideration is sought (Doc. 22).
Legal Standard
Technically, a “Motion to Reconsider” does not exist under the Federal Rules of Civil
Procedure. The Seventh Circuit has held, however, that a motion challenging the merits of a
district court order will automatically be considered as having been filed pursuant to either Rule
59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d
533, 535 (7th Cir. 1994). “[W]hether 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.” Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008)
(emphasis in original) (citing Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006)
(clarifying that “the former approach-that, no matter what their substance, all post-judgment
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motions filed within [28] days of judgment would be construed as Rule 59(e) motions- no longer
applies”)). Nevertheless, a motion to reconsider filed more than 28 days after entry of the
challenged order, “automatically becomes a Rule 60(b) motion.” Talano v. N.W. Med. Faculty
Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001) (citation omitted).
A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be granted if
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);
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).”).

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Plaintiff’s motion was filed within 28 days of the order he challenges, therefore, either
Rule 59(e) or Rule 60(b) may be applied. Plaintiff asserts that the Court made a mistake of fact
which led to the dismissal of Defendant Nalley. Accordingly, the Court construes the motion as
having been brought pursuant to Rule 59(e).
Discussion
In his Complaint, Cullum alleged that Defendant Davis had a routine practice of
slamming the door on him and fellow inmates each day as they attempted to exit the housing unit
for breakfast (Doc. 16 at 8). On July 22, 2014, Cullum and fellow inmates expressed
dissatisfaction with this practice and asked to speak with a supervisor (Id.). Davis denied that
request and did not allow the inmates to proceed to chow (Id.). During the course of the morning,
the inmates succeeded in relaying their complaints about Davis’ conduct to another prison
official who said she would report it (Id. at 9).
Shortly thereafter, Defendant Browder showed up at Cullum’s cell and told him he was
being taken to segregation (Id.). He and three other inmates were ultimately taken to segregation
on “investigative status” in connection with the morning’s events (Id.). Cullum alleges that while
in investigative segregation, Defendant Nalley attempted to turn the three other inmates against
him (Id.). Nalley’s efforts cause Plaintiff fear, though his fears never came to fruition and he did
not suffer harm (Id. at 10-11). Ultimately, Plaintiff and the three others received disciplinary
infractions as a result of the incident with Davis, including lost commissary and recreation
privileges, segregation, C-grade status and disciplinary transfers to other IDOC facilities (Id. at
11-12). All four inmates that received discipline for the July 22, 2014 incident were African
American, while two to four other white inmates were not disciplined over the incident (Id.).

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For screening purposes, this Court divided Cullum’s Complaint into seven distinct
counts, dismissing the only count it enumerated against Defendant Nalley—Count 6 for failure to
protect from Davis’s conduct (Doc. 22 at 4-5).
In his Motion for Reconsideration, Plaintiff asserts that dismissal of Nalley was
erroneous (Doc. 27 at 1-3). Specifically, Plaintiff contends that the Court’s enumeration of the
counts was mistaken to the extent that it associated two counts solely with Defendant Davis for
issuing a disciplinary ticket to Plaintiff (Counts 2 and 3) (Doc. 22 at 4). Plaintiff alleges that
Defendants Davis and Nalley were co-conspirators in the issuance of the disciplinary tickets and
thus they both participated in the conduct outlined in Counts 2 and 3 (Doc. 27 at 1-3). Plaintiff
alleged conspiracy in his original Complaint and those allegations of conspiracy are consistent
with the allegations in his Motion to Reconsider (Doc. 16 at 14-15; Doc. 27 at 1-3). Plaintiff
supports his assertion with copies of the disciplinary ticket which reflects Nalley as the reporting
officer (Id. at 5-8).
Cullum has shown a mistake of fact by the Court in screening Counts 2 and 3 in so much
as the Court inferred that Defendant Davis issued the disciplinary tickets related to the incident
on July 22, 2014. The evidence Collum proffered along with his Motion to Reconsider clearly
reflects that Defendant Nalley issued the disciplinary tickets (Doc. 27 at 5-8). Accordingly,
Counts 2 and 3 shall be amended to reflect Defendant Nalley’s participation in issuing the
disciplinary tickets. However, rather than just adding Defendant Nalley, it is appropriate for the
Court to also consider if Defendant Davis was mistakenly named in these counts.
As to Count 2, Defendant Davis did not issue the ticket, so he cannot be responsible
under Count 2 as presently framed by the Court (“Fourteenth Amendment equal protection claim

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against Defendant Davis for issuing disciplinary tickets only against Collum and other African
American inmates following the incident on July 22, 2014, while not issuing disciplinary tickets
to white inmates who engaged in the same conduct as Collum on the same day.”) However, it is
feasible that Defendant Davis could be liable under a theory of conspiracy, as originally alleged
by the Collum and highlighted in his Motion to Reconsider.
Civil conspiracy claims are cognizable under § 1983. See Lewis v. Washington, 300 F.3d
829, 831 (7th Cir. 2002) (recognizing conspiracy claim under section 1983). “[I]t is enough in
pleading a conspiracy merely to indicate the parties, general purpose, and approximate date . . . .”
Walker v. Thompson, 288 F.3d 1005, 1007-08 (7th Cir. 2002); see also Hoskins v. Poelstra, 320
F.3d 761, 764 (7th Cir. 2003); Tierney v. Vahle, 304 F.3d 734, 740 (7th Cir. 2002).
Here, in light of the evidence included in the Motion to Reconsider, the Collum has set
forth sufficient facts to allege a potential conspiracy regarding the issuance of the disciplinary
ticket. Collum alleges that Davis and Nalley worked inseparably in issuance of the ticket. Nalley
was not present when Davis slammed the door on July 14, 2014, so in Order for Nalley to have
issued disciplinary tickets about the event, it is reasonable to infer that he had to communicate
with Davis to learn about the event. Whether that communication went so far as to constitute a
conspiracy is unclear and the Court is unable to make that determination at this juncture.
Accordingly, Count 2 will be allowed to continue as to Defendants Davis and Nalley for
conspiracy and for an underlying Fourteenth Amendment violation.
With relation to Count 3, the same analysis with respect to a potential conspiracy is
applicable. It is feasible that Davis and Nalley worked in concert to issue disciplinary tickets in a

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retaliatory fashion. Accordingly, Count 3 will also be allowed to continue as to Defendants Davis
and Nalley for a conspiracy and an underlying First Amendment violation based on retaliation.
Upon review of the record, the Court is convinced that its ruling solely naming Davis in
connection with Counts 2 and 3 and entirely dismissing Defendant Nalley during its review
pursuant to 28 U.S.C. § 1915A was mistaken. Therefore, the Motion for Reconsideration (Doc.
27) is GRANTED in accordance with Fed. R. Civ. Proc. 59(e). Accordingly, Counts 2 and 3
shall be amended to read as follows:
Count 2:

Fourteenth Amendment equal protection claim and related conspiracy
claim against Defendants Davis and Nalley for issuing disciplinary tickets
only against Plaintiff and other African-American inmates following the
incident on July 22, 2014, while not issuing disciplinary tickets to white
inmates who engaged in the same conduct as Plaintiff on the same day;
and,

Count 3:

First Amendment retaliation claim and related conspiracy claim against
Defendants Davis and Nalley for issuing Plaintiff a disciplinary ticket after
Plaintiff sought to complain about Davis’ conduct following the July 22,
2014 incident.

The foregoing analysis of these revised counts shall be incorporated by reference into this
Court’s January 29, 2016 Memorandum and Order Doc. 22).
Disposition
IT IS ORDERED that the Plaintiff Cullum’s Motion for Reconsideration is hereby
GRANTED and the COMPLAINT shall receive further review as to DEFENDANT
NALLEY, as set forth in this Memorandum and Order. The Clerk of the Court is DIRECTED
to reinstate the Complaint (Doc. 16) against DEFENDANT NALLEY in Counts 2 and 3 as set
forth in this Memorandum and Order.
Accordingly, with respect to the COMPLAINT, the Clerk of Court shall prepare for

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DEFENDANT NALLEY: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a
Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail
these forms, a copy of the Complaint, and this Memorandum and Order to Defendant Nalley’s
place of employment as identified by Plaintiff. If a defendant fails to sign and return the Waiver
of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent,
the Clerk shall take appropriate steps to effect formal service on that defendant, and the Court
will require that defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
The Clerk is also DIRECTED to mail a courtesy copy of the Complaint, reflecting the
reinstatement of Defendant Nalley, to Defendants Davis and Browder.
With respect to a defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the defendant’s current work address, or, if
not known, the defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Defendant NALLEY is ORDERED to timely file an appropriate responsive pleading to
the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
As noted in the Court’s original referral order, pursuant to Local Rule 72.1(a)(2), this
action is REFERRED to United States Magistrate Judge Daly for further pre-trial
proceedings.
Further, this entire matter is hereby REFERRED to United States Magistrate Judge

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Daly for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should
all the parties consent to such a referral.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: November 7, 2016
s/ STACI M. YANDLE
STACI M. YANDLE
United States District Judge

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