Murithi v. Gleckler et al

Filing 92

ORDER DENYING 77 Motion to Alter Judgment and DENYING 89 Motion for Leave to File filed by Plaintiff Mwenda Murithi. Signed by Chief Judge Nancy J. Rosenstengel on 9/11/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MWENDA MURITHI,
Plaintiff,
v.

Case No. 3:16-CV-152-NJR-GCS

BRYAN GLECKLER, TERRI
ANDERSON, KIMBERLY BUTLER,
JACQUELINE LASHBROOK, and
JEANETTE COWAN,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is the Motion to Alter Judgment and Correct the Record
(Doc. 77) and the Motion for Leave to Supplement Motion to Alter Judgment with Newly
Discovered Evidence (Doc. 89) filed by Plaintiff Mwenda Murithi. Murithi is an inmate
in the Illinois Department of Corrections who filed this lawsuit under 42 U.S.C. § 1983 to
redress alleged violations of his constitutional rights (Doc. 1). Specifically, Murithi
alleged Defendants violated his Eighth Amendment rights when they failed to protect
him from a violent attack by other inmates (Id.).
On December 19, 2018, the undersigned adopted the Magistrate Judge’s Report
and Recommendation and granted Defendants’ motion for summary judgment on the
merits of the case (Doc. 75). The Court found that the evidence showed Defendants were
not deliberately indifferent to any risk to Murithi’s safety when they allowed him to sign
into protective custody until the investigation and appeals process concluded in March

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2015 (Id.). The Court also referenced concern by Defendant Cowan that Murithi may be
using protective custody to get near another inmate he previously assaulted. Finally, the
Court noted that Defendants offered to place Murithi in the “front street” cellhouse,
which he declined. At most, the Court found, the decision to ultimately deny Murithi’s
request for protective custody after the investigation was complete amounted to
negligence, which falls short of the standard for proving deliberate indifference (Id.).
Murithi now seeks to correct the record and asks the Court to alter its judgment in
favor of Defendants. Although Murithi does not invoke any rule that offers such relief,
Rule 59(e) of the Federal Rules of Civil Procedure permits the Court to alter or amend a
judgment 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, Murithi argues that he could not have been trying to get near the
inmate he previously assaulted, as that inmate was located at a different institution and
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there was a “Keep Separate From” order on both of them. He also explains that he denied
placement on front street because it was still general population and the Latin Folks could
reach him there. At the same time, he asserts Defendants should have placed him on front
street after his protective custody appeal was denied, but instead they placed him in the
back street cellhouses, thereby exhibiting deliberate indifference.
Murithi does not explain how any of this information clearly establishes that the
Court committed a manifest error of law or fact. Nor does it constitute “newly discovered
evidence.” Indeed, Murithi’s arguments are merely a rehashing of his previous
arguments made in opposition to summary judgment, and “[r]econsideration is not an
appropriate forum for rehashing previously rejected arguments or arguing matters that
could have been heard during the pendency of the previous motion.” Caisse Nationale de
Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). Accordingly, his
motion is denied.
On April 19, 2019, Murithi also filed a Motion for Leave to Supplement his motion
to alter or amend the judgment with “newly discovered evidence” (Doc. 89). Murithi
claims that since the filing of his motion to alter or amend the judgment, he has
discovered that Defendants were in possession of information alerting them of the danger
he faced at the time he was denied protective custody. Murithi attached an affidavit from
fellow inmate Sergio Torres, who attested that in November 2014, Internal Affairs
advised him to sign into protective custody because his name was on a gang hit list (Doc.
89 at pp. 4-5). Murithi also attached the affidavit of inmate Jonathan Meskauskas, who
attested that he had a conversation with another inmate who saw the aforementioned
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gang hit list and Murithi’s name was on it (Id. at p. 6).
The Court is not persuaded that this information proves any named Defendant in
this case was aware of a threat to Murithi’s safety. And in any event, the contents of the
affidavits consist of inadmissible hearsay and may not be relied upon to defeat summary
judgment. See FED. R. EVID. 802; FED. R. CIV. P. 56(c)(4); Maddox v. Jones, 370 F. App’x 716,
720 (7th Cir. 2010) (citing Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 533 (7th Cir.
2003) (inadmissible hearsay cannot be used to overcome a properly supported motion for
summary judgment). Accordingly, Murithi’s Motion for Leave to Supplement must also
be denied.
CONCLUSION
For these reasons, the Motion to Alter Judgment and Correct the Record (Doc. 77)
and the Motion for Leave to Supplement Motion to Alter Judgment with Newly
Discovered Evidence (Doc. 89) filed by Plaintiff Mwenda Murithi are both DENIED.
IT IS SO ORDERED.
DATED: September 11, 2019
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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