Jordan v. Attorney General et al

Filing 213

ORDER granting 209 Motion to consider motion to reconsider as timely filed, denying 207 Motion for Reconsideration and 210 MOTION for Reconsideration. Signed by Chief Judge Nancy J. Rosenstengel on 1/23/2024. (anp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH RAY JORDAN,
Plaintiff,
v.

Case No. 18-cv-1100-NJR

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Joseph Ray Jordan, an inmate of the Federal Bureau of Prisons (“BOP”)
who is currently incarcerated at the Federal Correctional Institution in Butner, North
Carolina (“FCI–Butner”), brings this action for alleged violations of his federal rights
while he was incarcerated at the United States Penitentiary in Marion, Illinois (“USP–
Marion”). Jordan was allowed to proceed on a single count in his lawsuit against the
United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, et seq.
In short, he alleged that officials and staff at USP-Marion failed in their duty to protect
him from an assault by another inmate. Jordan specifically identified seven ways in which
staff’s failures led to the assault.
On September 29, 2023, the Court granted the United States’s motion for summary
judgment on all of Jordan’s claims except one: his claim that officials were negligent in
failing to investigate or otherwise act regarding his complaints about Muslim inmates
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prior to the assault (Doc. 206). The Court found that Jordan’s other claims were either
barred by the discretionary function exception to the FTCA or failed because of lack of
evidence.
This matter is currently before the Court on several motions filed by Jordan. On
November 8, 2023, Jordan filed a motion for reconsideration of the decision rejecting his
cross-motion for summary judgment as untimely (Doc. 207). Over a month later, on
December 18, 2023, Jordan filed a notice and motion regarding motion for reconsideration
(Doc. 209) and a motion for reconsideration of the decision granting summary judgment
(Doc. 210). In his notice and motion, Jordan noted that he tried to submit his second
motion to reconsider on October 25, 2023, but the filings were returned to him by prison
officials and then were not tendered to the post office until late November 2023 (Doc. 209,
p. 2). He requests that the Court consider his motion (Doc. 210) as timely filed.
The Court will consider Jordan’s additional motion to reconsider (Doc. 210) as
timely filed. The United States filed responses (Docs. 208, 212) to both motions to
reconsider.
LEGAL STANDARDS
The Federal Rules of Civil Procedure do not expressly allow for “motions to
reconsider.” But Rule 54(b) allows for a court to review “any order or other decision…
that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties.” FED. R. CIV. P. 54(b). Any non-final order, such as a summary judgment motion
which does not adjudicate all of the claims, “may be revised at any time before the entry
of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Id. See
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also Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) (noting that
“every order short of a final decree is subject to reopening at the discretion of the district
judge”). A motion pursuant to Rule 54(b) is judged mostly by the same standard as a
motion to alter or amend judgment filed pursuant to Rule 59(e), “to correct manifest
errors of law or fact or to present newly discovered evidence.” Rothwell Cotton Co. v.
Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (citation omitted). See also Matter of Prince,
85 F.3d 314, 324 (7th Cir. 1996), reh’g and suggestion for reh’g en banc denied, cert. denied,
519 U.S. 1040; Deutsch v. Burlington N. R. Co., 983 F.2d 741 (7th Cir. 1993). “‘[M]anifest
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) (internal citations omitted).
“Reconsideration 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).
DISCUSSION
A. Motion to Reconsider Jordan’s Cross-Motion for Summary Judgment (Doc. 207)
Jordan’s first motion to reconsider requests reconsideration of the Court’s decision
to strike his cross-motion for summary judgment (Doc. 193). Simply put, Jordan fails to
meet the standard for reconsideration because he fails to demonstrate that the Court
made a mistake or that there is some change in law or fact warranting reconsideration.
Instead, he argues that when his attorney was withdrawn on June 15, 2021, he was never
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told that the deadline to file a summary judgment motion had expired or that he could
not file a cross-motion (Doc. 207, pp. 2-3).
Jordan is wrong. The United States’s dispositive motion was filed months before
the Court’s June hearing, and Jordan was aware that the motion was on file. It was clear
that the deadline had passed. After Jordan’s assigned counsel withdrew from the case,
Jordan was granted leave to file a supplemental response. Jordan did not request
additional time to file a cross-motion; he requested additional time to file a response, and
the minute entry makes clear that he was only granted leave to file a “supplemental
response” (Doc. 149). At no time did the Court grant an extension for Jordan to file his
own motion for summary judgment. Jordan’s subsequent motions for extension of time
sought additional time to file his response, and the Court granted the extensions to file
the response. The Court never granted Jordan additional time to file his own dispositive
motion.
To the extent Jordan argues that his cross-motion tied together material facts and
was necessary for the Court’s review of the United States’s summary judgment motion,
Jordan had the opportunity to file a response to the summary judgment motion and did
in fact file a 51-page response, including a statement of facts (Doc. 192). He also filed a
submission of affidavits and other evidence, totally 124 pages (Doc. 189), and a
subsequent supplemental affidavit (Doc. 194). He was also previously informed that he
was not granted leave to file his own dispositive motion and was well aware that he
should include all of his arguments in a properly filed response. On January 10, 2023, the
Court specifically denied Jordan’s motions regarding discovery related to his anticipated
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cross-motion, noting that the dispositive motion deadline had expired, and the Court
never extended the deadline (Doc. 180).
Thus, Jordan was aware that he was not granted leave to file his own dispositive
motion before the deadline to file his response. Jordan chose to file his motion anyway,
and it was properly stricken. He further chose to include arguments in his cross-motion
that could have been included in his lengthy response and supplements. To the extent he
chose to ignore court orders and file his cross-motion for summary judgment was a
calculated risk he chose to take on his own. It is not a proper basis for reconsideration.
B. Motion For Reconsideration of the Decision Granting Summary Judgment
(Doc. 210)
Jordan also fails to offer an appropriate basis for reconsideration of the Court’s
Order granting in part and denying in part the United States’s motion for summary
judgment. Jordan’s motion simply seeks to re-argue the summary judgment motion. He
argues that the Court misinterpreted or failed to view facts he raised in his numerous
briefs, which he alleges would have resulted in an outright denial of the United States’s
summary judgment motion. He restates his statement of facts (Doc. 210, pp. 4-5). And he
again argues that the Court should have considered arguments and facts raised in his
cross-motion for summary judgment. He argues that the Order made “apparent
inadvertent judicial omissions (likely due to the voluminous record)” (Doc. 210, p. 2).
But rehashing arguments and facts Jordan already raised in his original motion
and numerous supporting documents is not the proper basis for a motion to reconsider.
Nor is his umbrage with the Court’s ruling a proper basis for reconsideration. The Court

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considered the arguments and facts included in Jordan’s brief and exhibits. Further, as
previously discussed, Jordan’s cross-motion for summary judgment was properly
stricken, and any argument raised in the motion should have been raised in Jordan’s
responsive brief and documents. Jordan argues that the cross-motion contained details
and evidence supporting each of his claims of negligence. He cites to the cross-motion
extensively in arguing that the Court improperly found that some of the BOP’s actions
were protected by the discretionary function exception. He also argues that the Court
failed to address the many theories of negligence raised in the pleading. A subsequent
sur-reply (Doc. 203), which Jordan argues demonstrated certain facts should be
considered as undisputed and invalidated the United States’s reliance on the
discretionary function exception, was also properly stricken (Doc. 206, p. 3). To the extent
his motion to reconsider argues that the facts and arguments in those pleadings were not
considered by the Court, those arguments were properly excluded from consideration.
Finally, Jordan also takes issue with the Court’s findings related to his claim that
survived summary judgment—the claim that officials failed to investigate complaints of
tensions in the unit. Jordan argues that the Court should have determined that the United
States failed to prove the first element of the discretionary function exception. 1 The Court

The discretionary function exception to the FTCA excludes claims for acts or omissions of
employees that are “based upon the exercise…or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the Government, whether or
not the discretion involved be abused.” 28 U.S.C. § 2680(a). To avail itself of the discretionary
function exception, the government must establish that the act is discretionary rather than
mandatory, and the act must be based on considerations of public policy. McCoy v. United States,
731 F. App’x 524, 526 (7th Cir. 2018).

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found that the first element was met because the investigation of complaints were
discretionary acts (Doc. 206, pp. 17-18, 21). The Court addressed a statute and a BOP
Program Statement identified by Jordan, finding that those provisions did not stipulate
any requirements regarding investigations (Id. at p. 18). Jordan now points to 28 C.F.R.
541.27(d) and 541.28(a)-(b), arguing these provisions required investigations (Doc. 210,
pp. 22-23). But Jordan did not previously make any argument regarding the requirements
of these provisions. Jordan also has not demonstrated that the provisions, which focus on
investigations stemming from placement in administrative detention due to safety issues,
are applicable to his claims. Thus, Jordan’s motion to reconsider fails to offer a valid basis
for reconsideration.
CONCLUSION
For the reasons stated above, Jordan’s motion to consider his motion to reconsider
as timely filed (Doc. 209) is GRANTED. His motions to reconsider (Docs. 207, 210) are
DENIED.
IT IS SO ORDERED.
DATED: January 23, 2024
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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