Orozco v. Butler et al

Filing 96

ORDER: The 89 Motion to Reconsider is DENIED. The 92 Motion to Substitute Jane Doe is GRANTED. The Clerk of Court is directed to SUBSTITUTE Jacqueline Lashbrook for Jane Doe and to TERMINATE Anthony Wills as a party to this case. The Clerk is fur ther DIRECTED serve process on Lashbrook in accordance with this Order. The 94 Motion for Extension of Time for Discovery is also GRANTED. All discovery must conclude by January 8, 2021, and dispositive motions shall be filed by February 8, 2021. The 95 Motion for Leave to File Defendants' Answer Instanter is GRANTED. Defendants are DIRECTED to file the Answer and Affirmative Defenses to the Second Amended Complaint instanter. Signed by Judge Stephen P. McGlynn on 11/16/2020. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROGELIO OROZCO,
#R26820,
Plaintiff,
Case No. 16-cv-01179-SPM
v.
KIMBERLY BUTLER, et al.,
Defendants.

MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter comes before the Court on the Motion for Reconsideration (Doc. 89), the
Motion to Substitute (Doc. 92), and the Motion for Extension of Time for Discovery filed by
Plaintiff Rogelio Orozco. Also, before the Court is a Motion for Leave to File Answer (Doc. 95)
filed by Defendants.
BACKGROUND
Plaintiff Orozco is an inmate of the Illinois Department of Corrections who is currently
incarcerated at Western Illinois Correctional Center. He brings this civil action pursuant to 42
U.S.C. § 1983 for violations of his constitutional rights while at Menard Correctional Center
(“Menard”) and Pontiac Correctional Center (“Pontiac”). In the Second Amended Complaint,
Orozco alleges that he was found guilty of a falsified disciplinary report following unconstitutional
disciplinary hearings held on April 24, 2014, and May 9, 2014, at Menard, and November 20,
2014, at Pontiac. He was punished with a disciplinary transfer to Pontiac and one year in
segregation, where he endured harsh conditions. After completing his punishment, the
Administrative Review Board in April 2015 retroactively reduced Orozco’s punishment to three
months segregation and ordered that the disciplinary record reflect the result.
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On August 14, 2020, Chief Judge Rosenstengel conducted a merit review of the Second
Amended Complaint pursuant to 28 U.S.C. 1915A. (Doc. 84). In the Order, the Chief Judge
dismissed Count 3 against Godinez and McCarty for failing to adequately intervene in response to
Orozco’s grievance regarding the disciplinary hearing held on May 9, 2014. This case was
transferred to the undersigned on October 5, 2020. (Doc. 93).
MOTION FOR RECONSIDERATION
The district court has the ability to reconsider nonfinal orders, both as an exercise of its
own discretion and pursuant to Federal Rule of Civil Procedure 54(b). See Terry v. Spencer, 888
F. 3d 890, 892-93 (7th Cir. 2018). The purpose of a motion to reconsider is to correct manifest
errors of law or fact or to present newly discovered evidence. Caisse Nationale de Credit Agricole
v. CBI Indus. Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Reconsideration is also appropriate where
“the Court has patently misunderstood a party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error not of reasoning but of apprehension.”
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citations
omitted). “A ‘manifest error’ is not demonstrated by the disappointment of the losing party. It is
the is the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto
v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citations omitted).
Orozco has filed a motion asking the Court to reconsider the dismissal of Count 3. (Doc.
89). He argues that Chief Judge Rosenstengel misinterpreted or misunderstood his claim. Orozco
states his intentions are to bring a claim against McCarthy and Godinez, Administrative Review
Board members, for a deprivation of a protected liberty interest without due process of law. He
claims that during the October 20, 2014, administrative review of his grievance, both Defendants
had evidence that officials at Menard had deprived him of his right to due process during the May
9 Adjustment Committee hearing. Despite this knowledge, Defendants failed to investigate and
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address the violations by Menard officials, demonstrating that they were partial in their
determinations and deprived him of a fair and impartial hearing. Because McCarty and Godinez
failed to address the improper enhanced sanctions imposed, Orozco was held in segregation for a
year in deplorable conditions.
Because Orozco has not demonstrated there has been an error of law or fact in the Court’s
previous ruling, the Motion is denied. According to the Second Amended Complaint, McCarty
and Godinez had no involvement in the disciplinary proceedings that occurred at Menard. They
simply reviewed the grievance that Orozco submitted regarding the alleged constitutional
violations that had already happened. “Only persons who cause or participate in the violations are
responsible…[and] [r]uling against a prisoner on an administrative complaint does not cause or
contribute to the violation.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). As Chief Judge
Rosenstengel stated in the Merit Review Order, “prison officials who simply processed or
reviewed inmate grievances lack personal involvement in the conduct forming the basis of the
grievance.” (Doc. 84, p. 6) (citing Owens v. Evans, 878 F. 3d 559, 563 (7th Cir. 2017)). As also
stated in the Merit Review Order, the Constitution does not require a grievance procedure at all.
(Doc. 84, p. 6). The allegations that McCarty and Godinez were impartial in reviewing the
grievance and did not properly investigate or address the allegations contained in the grievance do
not state a constitutional claim for denial of due process. See Owens v. Hinsley, 635 F. 3d 950, 953
(7th Cir. 2001).
Orozco’s attempt to assert liability because McCarty and Godinez knew about the
unconstitutional conduct at Menard but failed to conduct a “minimal investigation” and “address
the clear violations,” (Doc. 89, p. 4), also fails. While an official may be subject to liability if he
or she “knows about unconstitutional conduct and facilitates, approves, condones, or ‘turn[s] a
blind eye’ to it.” Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015), that is not what is alleged
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in the Second Amended Complaint. On the contrary, Orozco claims that McCarty and Godinez
reviewed the grievance and ordered that additional information to be provided and that a rehearing
be conducted. (Doc. 85, p. 17). “They clearly did not ‘turn a blind eye.’ The fact that these were
not the responses [Orozco] desired does not make them a violation of his constitutional rights.”
(Doc. 34, p. 8). Accordingly, the Motion to Reconsider is denied.
MOTION TO SUBSTITUTE JANE DOE
The Motion to Substitute Jane Doe (Doc. 92) is granted. Jacqueline Lashbrook will be
substituted for Jane Doe. Additionally, because the unknown defendant has now been identified,
Anthony Wills, the warden of Menard, is no longer a necessary party and is dismissed without
prejudice.
MOTION FOR EXTENSION OF TIME FOR DISCOVERY
Orozco has also filed a Motion for Extension of Time for Discovery requesting an
additional sixty days to complete discovery. (Doc. 94). He states that because of the medical
quarantine imposed at Western Illinois Correctional Center his access to the law library and legal
documents has been limited. In support of his Motion, he has included a letter from law library
staff stating his name is on the list to visit the library but that all visits to the library are prohibited
at this time due to the COVID Medical Quarantine. The letter also states that law library staff are
visiting the cell houses, but they are unable to give a date certain for when someone would be able
to visit Orozco. (Id. at p. 8). Defendants have not filed a response to the request for additional time.
Accordingly, the Court finds good cause to amend the scheduling order. All discovery must
conclude by January 8, 2021, and dispositive motions shall be filed by February 8, 2021.
MOTION FOR LEAVE TO FILE ANSWER
Defendants request to file a responsive pleading to Orozco’s Second Amended Complaint
instanter. (Doc. 95). They recognize that the pleading is two months late but state that the deadline
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was missed due to an administrative error in the midst of pandemic on the part of Defense counsel
and not due to fault on the part of Defendants. The Motion is granted. Defendants are directed to
file the Answer and Affirmative Defenses to the Second Amended Complaint instanter.
DISPOSITION
For the reasons stated above, the Motion to Reconsider (Doc. 89) is DENIED. The Motion
to Substitute Jane Doe (Doc. 92) is GRANTED. The Clerk of Court is directed to SUBSTITUTE
Jacqueline Lashbrook for Jane Doe and to TERMINATE Anthony Wills as a party to this case.
The Clerk is further DIRECTED to prepare for Lashbrook: (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 Second Amended Complaint (Doc. 85),
the Merit Review Order (Doc. 84), and this Memorandum and Order to Lashbrook’s place of
employment as identified by Orozco.
The Motion for Extension of Time for Discovery (Doc. 94) is also GRANTED. All
discovery must conclude by January 8, 2021, and dispositive motions shall be filed by February
8, 2021.
The Motion for Leave to File Defendants’ Answer Instanter (Doc. 95) is GRANTED.
Defendants are DIRECTED to file the Answer and Affirmative Defenses to the Second Amended
Complaint instanter.
IT IS SO ORDERED.
DATED: November 16, 2020
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

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