Gonzalez v. Wexford Health Sources, Inc. et al
ORDER denying 17 Motion for Reconsideration. Signed by Judge Nancy J. Rosenstengel on 8/10/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WEXFORD HEALTH SOURCES, INC.,
JOHN DOE, 1,
JOHN DOE 2,
JOHN DOE 4,
Case No. 17-CV-287-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now before the Court is a Motion for Reconsideration (Doc. 17) filed by Plaintiff
Gilberto Gonzalez, an inmate currently housed at Menard Correctional Center (“Menard”). In the
Motion for Reconsideration, Plaintiff challenges certain aspects of the Order Referring Case
dated July 17, 2017. (Doc. 10). Plaintiff asks the Court to reinstate the following: Count 1, an
Eighth Amendment conditions of confinement claim as to Defendants Wexford and Oakley;
Count 4, a First and/or Fourteenth Amendment claim pertaining to inadequate law library staff;
Count 3 (misidentified in the Motion for Reconsideration as Count 5), a First Amendment claim
pertaining to lost or delayed mail; and Count 6, an Eighth Amendment claim for deliberate
indifference to Plaintiff’s medical needs on December 23, 2016 (for canceling a medical
appointment during lockdown). For the reasons set forth below, Plaintiff’s motion will be denied.
Standard of Review
In his motion (Doc. 17), Plaintiff invokes no statutory basis for relief. 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 60(b) of the
Federal Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994).
Different time-tables and standards govern these motions.
A Rule 59 motion must be filed within 28 days of the order being challenged. Rule 59(e)
authorizes the Court to correct its own manifest errors of law or fact and to consider newly
discovered material evidence. See Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). See
also Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007) (citing LB Credit Corp. v.
Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). The Seventh Circuit has made it
clear, however, that the rule “does not provide a vehicle for a party to undo its own procedural
failures, and it certainly does not allow a party to introduce new evidence or advance arguments
that could and should have been presented to the district court prior to the judgment.” Moro, 91
F.3d at 876.
A Rule 60(b) motion must be filed within a “reasonable time,” and, for the motions
described in Rule 60(b)(1)-(3), within one year of the order being challenged. See FED. R. CIV. P.
60(c)(1). Rule 60(b) allows a court to relieve a party from an order or judgment because of a
mistake, surprise, or excusable neglect by the movant; fraud or misconduct by the opposing
party; a judgment that is void or has been discharged; newly discovered evidence that could not
have been discovered within the 28-day deadline for filing a Rule 59 motion; or any other reason
justifying relief. See FED. R. CIV. P. 60(b)(1)-(5). 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., Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741,
743 (7th Cir. 2009).
Plaintiff’s motion is timely under Rules 59(e) and 60(b). (Doc. 17). He filed the motion
within 28 days of the Order Referring Case. (See Doc. 10). However, the motion does not
identify a viable reason for granting relief under either rule. Plaintiff’s arguments focus on the
Court’s without prejudice dismissal of certain claims and defendants for failure to include
sufficient factual allegations in the Complaint. In arguing for reconsideration, Plaintiff advances
additional facts and allegations in support of the specified claims. Additionally, at times, Plaintiff
simply takes umbrage with the Court’s analysis. Neither argument justifies granting relief under
Rule 59(e) or Rule 60(b). Accordingly, the Motion for Reconsideration must be denied.
As set forth more fully below, to the extent Plaintiff believes there are additional facts
that support proceeding on one of the challenged claims (or for reinstating a particular
defendant), he must seek leave to file an amended complaint in accordance with Rule 15 of the
Federal Rules of Civil Procedure and Local Rule 15.1.
Count 1 – Deliberate Indifference as to Wexford
Count 1 is an Eighth Amendment conditions of confinement claim pertaining to the
conditions in Plaintiff’s cell. The Complaint alleges Wexford failed to conduct certain safety
checks required by state law – checks that allegedly would have revealed Plaintiff’s cell
conditions were unlivable. The Complaint does not allege Plaintiff’s cell conditions were the
result of a policy that can be attributed to Wexford. 1 As explained in the Referral Order, this is
insufficient. An alleged violation of a prison rule or regulation does not, by itself, establish a
Plaintiff did, however, allege that his inadequate medical care was attributable to a Wexford policy (Count 2). As
such, Count 2 was allowed to proceed against Wexford.
constitutional violation. See Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). Accordingly,
Count 1 was dismissed as to Wexford without prejudice.
In his Motion for Reconsideration, Plaintiff presents additional arguments pertaining to
Wexford’s failure to follow mandatory rules or guidelines. As previously explained, such a
claim, standing alone, is insufficient. Plaintiff also suggests, for the first time, that Wexford was
responsible for a policy that contributed to the alleged unconstitutional conditions of
confinement. This new allegation does not provide a basis for granting a motion to reconsider.
Instead, this claim can only be pursued by seeking leave to file an amended complaint in accord
with federal and local rules.
Count 1 – Deliberate Indifference as to Oakley
The Complaint alleges Oakley, a grievance counselor, denied a grievance pertaining to
Plaintiff’s cell conditions. The denial of a grievance, standing alone, generally states no claim.
See George v. Abdullah, 507 F.3d 605, 609 (7th Cir. 2007) (“Ruling against a prisoner on an
administrative complaint does not cause or contribute to the violation.”); Owens v. Hinsley, 635
F.3d 950, 953 (7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner’s] grievance by persons
who otherwise did not cause or participate in the underlying conduct states no claim.”).
Additionally, the Complaint does not suggest that Oakley “turned a blind eye” to an alleged
constitutional violation. See e.g., Perez v. Fenoglio, 792 F.3d 768 (7th Cir. 2015). Accordingly,
Count 1 was dismissed as to Oakley without prejudice for failure to state a claim.
In his Motion for Reconsideration, Plaintiff offers additional facts regarding Oakley’s
responsibilities as a grievance counselor and her conduct in connection with Plaintiff’s
grievance. Plaintiff argues these facts establish Oakley is subject to liability with respect to
Count 1. While these newly alleged facts may provide support for granting a motion to amend,
they do not provide a basis for granting reconsideration.
Count 3 – Lost or Delayed Mail
Count 3 (mistakenly identified as Count 5 in the Motion for Reconsideration) is a First
Amendment claim pertaining to lost or delayed mail. The Complaint alleges that, due to
inadequate staffing, mail deliveries at Menard are often delayed or lost. As the Court recognized
in its Referral Order, “a continuing pattern or repeated occurrences” of mail interference may
state a viable constitutional claim. Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000). The
allegations in the Complaint do not state a claim, however, because Plaintiff fails to allege that
his mail has been lost or delayed. Generally alleging that mail is lost or delayed at Menard states
The Motion for Reconsideration presents no argument suggesting that the without
prejudice dismissal of this claim warrants reconsideration.
Count 4 – Inadequate Law library
Count 4, an access to the courts claim pertaining to alleged law library inadequacies, was
dismissed without prejudice for failure to state a claim. Specifically, Plaintiff failed to associate
an injury or hindrance with the alleged inadequacies. In his Motion for Reconsideration, Plaintiff
asserts numerous additional facts in an effort to correct this deficiency. These additional
allegations could have been included in the original Complaint and do not provide a basis for
Count 6 – Deliberate Indifference (Missed Medical Appointment)
The Complaint alleges that Wexford, Trost, Butler, Baldwin, and Doe 1 have
implemented a policy whereby all medical appointments are cancelled when the facility is on
lockdown. (Doc. 1, p. 23). As a result, Plaintiff contends his medical call pass was canceled.
(Doc. 1, p. 24). Other than directing the Court to Exhibit F, the Complaint does not provide any
additional detail with respect the cancelled appointment. Exhibit F merely indicates that a single
appointment, on December 23, 2016, was cancelled because Menard was on lockdown. (Doc. 1,
p. 45). These minimal allegations do not sufficiently allege a claim for deliberate indifference.
Accordingly, Count 6 was dismissed without prejudice.
In his Motion for Reconsideration, Plaintiff alleges that the missed appointment was a
follow-up appointment for his broken thumb. (Doc. 17, p. 11). Plaintiff further alleges that,
because of the missed appointment, he was not treated for eight days and suffered unnecessary
pain. Id. Once again, Plaintiff is attempting to fill holes in his Complaint by providing the Court
with additional facts in his Motion for Reconsideration. This is improper.
To summarize, the Motion for Reconsideration does not identify any mistake,
inadvertence, surprise, or excusable neglect. It also fails to identify any manifest errors of law or
fact and does not present newly discovered material facts. Instead, Plaintiff is attempting to
correct deficiencies in the Complaint by including new facts and allegations in his Motion for
Reconsideration. In other words, Plaintiff is attempting to expand the allegations in his
Complaint by filing a motion to reconsider. Rules 59(e) and 60(b) cannot be used for this
purpose. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) (plaintiff can add allegations
to an existing complaint only by filing a complete amended complaint, which will supersede all
The proper method to change or add allegations to a complaint is by means of an
amended complaint. If Plaintiff wants to pursue these claims, he must file an amended complaint
in accordance with Rule 15 of the Federal Rules of Civil Procedure and Local Rule 15.1.
Plaintiff has not stated any grounds for relief within the scope of Rules 59(e) or 60(b) of
the Federal Rules of Civil Procedure. Upon review of this matter, the Court remains persuaded
that the challenged aspects of the Order Referring Case were correct. For this reason, the Motion
for Reconsideration (Doc. 17) is DENIED.
IT IS SO ORDERED.
DATED: August 10, 2017
NANCY J. ROSENSTENGEL
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?