Brand v. Wexford Health Care Serv et al

Filing 65

ORDER DENYING 60 Motion for Reconsideration filed by Olsen Brand. Signed by Judge Nancy J. Rosenstengel on 3/18/2019. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OLSEN BRAND,
Plaintiff,
vs.
DR. EMMANUEL AFUWAPE,
Defendant.

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Case No. 3:16-CV-161-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the Motion for Reconsideration filed by Plaintiff
Olsen Brand (Doc. 60). Brand asks the Court to reconsider its order adopting now-retired
Magistrate Judge Donald G. Wilkerson’s Report and Recommendation and granting
summary judgment in favor of Defendant Dr. Emmanuel Afuwape (Doc. 57). For the
reasons set forth below, the motion is denied.
BACKGROUND
Brand is a former inmate of the Illinois Department of Corrections. While
incarcerated, Brand filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983 against
a number of defendants, all of whom were dismissed from the suit except Dr. Afuwape.
In his Amended Complaint, Brand alleged Dr. Afuwape was deliberately indifferent to
his serious medical needs in violation of the Eighth Amendment (Doc. 12). Specifically,
Brand alleged Dr. Afuwape saw him on multiple occasions but refused to provide him
with medication for his asthma and COPD (Id.).
Dr. Afuwape filed a motion for summary judgment on January 17, 2018, arguing

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that the undisputed evidence demonstrates he was not deliberately indifferent to Brand’s
serious medical needs (Doc. 50). Brand did not file a response in opposition to summary
judgment, so Judge Wilkerson found Dr. Afuwape’s facts to be undisputed for purposes
of the motion. See SDIL-LR 7.1(g).
After considering the undisputed facts, Judge Wilkerson concluded that Dr.
Afuwape should be entitled to summary judgment because no reasonable jury could find
that his failure to prescribe Brand an inhaler was a significant departure from accepted
professional standards (Doc. 55). When Dr. Afuwape first saw Brand, he had not suffered
an asthma attack in a long time, he was not on any asthma medication at that point, and
he was not having difficulty breathing (Id.). And when Brand did suffer an asthma attack
two months later, Dr. Afuwape responded by immediately ordering a breathing
treatment and a rescue inhaler, followed by a steroid inhaler two days later (Id.). Thus,
Judge Wilkerson found, Dr. Afuwape was not deliberately indifferent to Brand’s serious
medical needs (Id.).
Judge Wilkerson entered a Report and Recommendation on July 24, 2018, and the
parties were informed that any objections were due within 14 days after service (Id.).
Because no party objected to the Report and Recommendation, the undersigned reviewed
Judge Wilkerson’s findings for clear error. After undertaking clear error review, the
undersigned agreed with Judge Wilkerson’s analysis and granted summary judgment for
Dr. Afuwape on August 14, 2018 (Doc. 57).
Two days later, Brand filed “Exhibits” (Doc. 59), followed the next day by the
instant Motion for Reconsideration (Doc. 60). Dr. Afuwape filed a response in opposition
on August 31, 2018 (Doc. 62).
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DISCUSSION
Brand does not cite a specific statute or rule under which he brings his “motion to
reconsider,” and the Federal Rules of Civil Procedure do not specifically provide for such
motions. Nevertheless, courts in the Seventh Circuit generally review these motions
under Rule 59(e) or Rule 60(b). Whether to characterize a motion as arising under Rule
59(e) or 60(b) depends on the nature of the motion. “[I]t is the substance, rather than the
form, of a post-judgment motion that determines the rule under which it should be
analyzed.” Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008).
Rule 59(e) gives a court discretion to amend a judgment if the movant
demonstrates a manifest error of law or fact or presents newly discovered evidence. See
Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 814 (7th Cir. 2012). “This rule enables the court
to correct its own errors and thus avoid unnecessary appellate procedures.” Id. at 813
(citation omitted). A motion to alter or amend under Rule 59(e) “must be filed no later
than 28 days after the entry of the judgment.” FED. R. CIV. P. 59(e).
Rule 60(b) permits a court to vacate a judgment, order, or proceeding if brought
within a “reasonable time” after the entry of judgment —and within a year for mistake,
newly discovered evidence, or fraud. FED. R. CIV. P. 60(c)(1); FED. R. CIV. P. 60(b)(1), (2),
(3). Rule 60(b) also contains a catch-all provision granting the court discretion to fashion
a remedy for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6).
Here, Brand’s motion does not meet the requirements for relief under either Rule
59(e) or 60(b). He has not demonstrated that the Court committed a manifest error of law,
that there is newly discovered evidence, or that any other mistake was made that
warrants reconsideration. In fact, Brand’s motion is devoid of any argument whatsoever.
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Instead, Brand makes factual allegations regarding his medical history that are
unsupported by any citation to the record. Specifically, Brand alleges that he saw Dr.
Afuwape on October 28, 2015, two weeks after arriving at Vandalia; that Dr. Afuwape
took his vitals and made an entry into his records about his asthma and COPD; and that
Brand never received any medication. Brand also asserts Dr. Afuwape told him to “shut
up, we are not here to talk.” Then, on December 28, 2015, Dr. Afuwape saw Brand again
and gave him a COPD pump. Brand’s exhibits are similarly unhelpful, as they consist of
medical records from doctors and pharmacies Brand visited after he was released from
prison on or about April 29, 2016 (see Docs. 14, 59, 59-1).
Finally, even if the motion and exhibits contained relevant information that would
entitle him to relief, Brand does not explain why he failed to timely respond to the motion
for summary judgment or object to Judge Wilkerson’s Report and Recommendation.
In sum, Brand has not provided the Court with any evidence demonstrating that
the Court erred in granting summary judgment to Dr. Afuwape and that relief from the
judgment

is

appropriate.

Accordingly,

Plaintiff

Olsen

Brand’s

Motion

Reconsideration (Doc. 60) is DENIED.
IT IS SO ORDERED.
DATED: March 18, 2019
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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for