Cunningham v. Lewis et al

Filing 70

ORDER DENYING 62 MOTION for Reconsideration filed by Bennie Cunningham. Signed by Judge Staci M. Yandle on 10/30/17. (bps)

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

BENNIE CUNNINGHAM,

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Plaintiff,
vs.
BENJAMIN LEWIS, et al.,
Defendants.

Case No. 15-CV-619-SMY-RJD

MEMORANDUM AND ORDER
Plaintiff Bennie Cunningham, formerly an inmate at the Illinois Department of
Corrections’ Lawrence Correctional Center, brought this action pursuant to 42 U.S.C. § 1983
against Defendants Daniel Korte, Trent Ralston, Benjamin Lewis and Jason Zollers, who are
employees of the Illinois Department of Corrections. (Doc. 1). Following threshold screening
by the Court, Plaintiff proceeded against Defendants on an Eighth Amendment excessive-use-offorce claim. On August 11, 2017, the Court granted summary judgment in favor of Defendants
Korte and Ralston.

(Doc. 61).

Now pending before the Court is Plaintiff’s Motion to

Reconsider. (Doc. 62). Defendants filed a response (Doc. 63). For the following reasons, the
motion is DENIED.
The Federal Rules of Civil Procedure do not explicitly recognize motions to reconsider.
However, this Court has the inherent power to reconsider interlocutory orders and
reconsideration is committed to the court's sound discretion. Peterson v. Lindner, 765 F.2d 698,
704 (7th Cir. 1985).

Unless expressly stated otherwise, orders granting partial summary

judgment are not final judgments under Federal Rule of Civil Procedure 54, and “may be revised
at any time before the entry of a judgment adjudicating all the claims and all the parties' rights

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and liabilities.” Fed. R. Civ. P. 54(b).
Motions to reconsider should rarely be granted. Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). Granting such a motion is appropriate in two
extraordinary situations: where the court's misapprehension has produced a manifest error of fact
or law, or where a controlling or significant change in fact or law has materialized since the court
issued its initial ruling. Id.; Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.
1987). Misapprehension occurs where the court patently misunderstands the issue or decides the
matter based on considerations beyond the issues presented by the parties for review. Bank of
Waunakee, 906 F.2d at 1191.
Here, Plaintiff does not suggest that there has been a controlling or significant change is
fact or law. Rather, Plaintiff “respectfully disagrees with the Court’s ultimate conclusion and
urges the Court to examine not simply each instance of allegedly excessive force but rather to
look at the totality of the conduct as a whole.” (Doc. 62, ¶4). Plaintiff does not allege any
misstatement of the law, nor does he suggest that the factual findings were either incomplete or
inaccurate. He simply disagrees with the Court's analysis of the evidence and its ruling and
merely restates facts and arguments previously addressed by the Court. Caisse Nationale de
Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (Reconsideration is
not an appropriate forum for rehashing previously rejected arguments).
Plaintiff recites a condensed version of the alleged bad conduct and offers Thomas v.
Stalter, 20 F.3d 298 (7th Cir. 1994) as the “most controlling case in this matter.” (Doc. 62 at
¶10). The Court explicitly discussed Thomas in its Order and found that Lunsford v. Bennet, 17
F.3d 1574 (7th Cir. 1994) and DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000) were more apt

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comparisons to this case. (Doc. 61 at 7). Plaintiff provides no basis for the Court to conclude
that its analysis was erroneous.
Moreover, to the extent Plaintiff did not explicitly argue a “totality of the conduct” theory
in his original motion and briefing, he cannot raise it for the first time in a motion to reconsider.
Bally Exp. Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir. 1986). In sum, Plaintiff has
presented no adequate grounds to justify revisiting the Court’s prior order. As such, Plaintiff’s
Motion to Reconsider is DENIED.

IT IS SO ORDERED.
DATED: October 30, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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