Love v. Meyers et al
ORDER denying 150 Motion for Reconsideration filed by Percy Myers. Signed by Chief Judge Nancy J. Rosenstengel on 8/1/2022. (anp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 18-cv-2000-NJR
PERCY MYERS and ROB JEFFREYS
(official capacity only),
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Abdul Love, an inmate of the Illinois Department of Corrections (“IDOC”)
who at all times relevant to this case was incarcerated at Pinckneyville Correctional
Center (“Pinckneyville”), seeks monetary damages and injunctive relief for deprivations
of his constitutional rights pursuant to 42 U.S.C. § 1983. After summary judgment, the
only claim remaining is an Eighth Amendment deliberate indifference claim against Dr.
Percy Myers for failing to adequately treat Love’s Crohn’s disease (Doc. 147). To the
extent that Love seeks injunctive relief, Rob Jeffreys also remains in the case (in his official
This matter is before the Court on Dr. Myers’s motion to reconsider (Doc. 150). Dr.
Myers argues that the Court was wrong in denying his summary judgment motion
because the Court previously found that Love had not demonstrated a likelihood of
success on his claim when he sought a preliminary injunction. Love filed a response in
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opposition to the motion (Doc. 161). Dr. Myers filed a reply (Doc. 162).
Love’s only remaining claim is Count 1 against Dr. Myers which alleges an Eighth
Amendment deliberate indifference claim for failing to adequately treat Love’s Crohn’s
disease. At the summary judgment stage, the Court found that there were issues of
material fact which precluded summary judgment (Doc. 147, pp. 10-11). Specifically,
there were disputes of fact as to whether Love was compliant with his treatment but still
had symptoms. The Court found that if a jury believed Love’s testimony, then Dr. Myers’s
decision to cancel Love’s appointment with a specialist could amount to deliberate
indifference (Id. at p. 11). Further, there was evidence in the record that although a normal
course of mesalamine enemas last several weeks, Dr. Myers continued on the enema
course for six months and delayed prescribing Love Imuran. This was despite a
recommendation by Dr. Bozdech, a specialist Love saw in July 2017, to prescribe a
different medication if mesalamine enemas did not put Love’s condition into remission
(Id. at p. 11). The Court found that such evidence could lead a jury to find Dr. Myers acted
with deliberate indifference. Thus, the Court found that Dr. Myers was not entitled to
Dr. Myers filed a motion to reconsider, arguing that the Court was incorrect in
finding that there were issues of fact from which a jury could find deliberate indifference.
Specifically, Dr. Myers noted that the Court previously denied Love’s preliminary
injunction motion in May 2019 because, at the time, Love could not show a reasonable
likelihood of success on his deliberate indifference claim (Doc. 62). The Court noted that
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Dr. Myers had not continued in an ineffective course of treatment because he had
prescribed the medication that Love sought in his Complaint (Doc. 62, p. 7). Dr. Myers
argues that, since the denial of Love’s preliminary injunction motion, he failed to offer
any new evidence to demonstrate that Dr. Myers acted with deliberate indifference in
treating his condition. Dr. Myers also argues that, in denying the summary judgment
motion, the Court may not have reviewed Dr. Myers’s reasoning for his medical decision
and misread Dr. Bozdech’s recommendations.
Dr. Myers brings his motion to reconsider under both Federal Rule of Civil
Procedure 59(e) and 54(b). The Federal Rules of Civil Procedure do not expressly
recognize motions to reconsider. See Hope v. United States, 43 F.3d 1140, 1142, n. 2 (7th
Cir.1994) (stating that “strictly speaking” a motion for reconsideration does not exist
under the Federal Rules of Civil Procedure). A motion to alter or amend judgment filed
pursuant to Rule 59(e) may only be granted if a movant shows there was a mistake of law
or fact, or presents newly discovered evidence that could not have been discovered
previously. 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. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal citations
omitted). A movant may not use a Rule 59(e) motion to present evidence that could have
been submitted before entry of the judgment. Obriecht v. Raemisch, 517 F.3d 489, 494 (7th
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Cir. 2008) (citing Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007)).
Rule 59(e) is a tool for amending judgments and a partial summary judgment, like
the one in this case, is not a final judgment. See Minority Policy Officers Ass’n of South Bend
v. City of South Bend, Ind., 721 F.2d 197 (7th Cir. 1983); Deimer v. Cincinnati Sub-Zero
Products, Inc., 990 F.2d 342, 346 (7th Cir. 1993) (“[T]he district court’s ‘partial summary
judgment’ was not subject to the strictures of Rule 59(e).”). Thus, Dr. Myers properly
raises his motion under Federal Rule of Civil Procedure 54(b), which provides that an
order that does not adjudicate all the claims “may be revised at any time before the entry
of judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R.
Civ. P. 54(b). A motion under Rule 54(b) is appropriate only when “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[,]”
or when there has been significant changes to the law or facts of the case. See Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). “Such problems
rarely arise and the motion to reconsider should be equally rare.” Id.
Simply put, the Court does not find any mistake of law or fact in denying Dr.
Myers’s motion for summary judgment. Dr. Myers takes issue with two determinations
by the Court: that there was a dispute of fact as to whether Dr. Myers improperly
cancelled Love’s follow-up with a gastroenterologist and whether he improperly
continued with a course of mesalamine enemas. Dr. Myers argues that the Court
previously found that Love failed to present evidence of deliberate indifference in
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denying his motion for preliminary injunction, and that no additional evidence was
presented that would change that previous finding. But Dr. Myers misreads the findings
in the Court’s previous Order. The Court found that Love could not show a reasonable
likelihood of success on his deliberate indifference claim “at this point in the litigation”
(Doc. 62, p. 7). Specially, this was because, prior to the hearing, Dr. Myers met with Love
and discussed Dr. Bozdech’s recommendations. He also started Love on a different
medication, and Love testified that he felt better and that he had improved stools (Id. at
p. 7). Thus, at the time of the evidentiary hearing, there was no evidence that Dr. Myers
was currently being deliberately indifferent to Love’s condition.
After the hearing, however, Love participated in a deposition and additional
discovery was conducted. At the summary judgment stage, he was able to produce
evidence, including testimony from his deposition, that a jury could find Dr. Myers acted
with deliberate indifference. Although Dr. Myers argues that this Court should adopt its
factual findings from the preliminary injunction Order and that it is the “law of the case,”
the Seventh Circuit has cautioned against adopting findings and conclusions from the
preliminary injunction stage when ruling on a summary judgment motion. Thomas &
Betts Corp. v. Panduit Corp., 138 F.3d 277, 292 (7th Cir. 1998).
This caution is necessary for two reasons: first, findings of fact and
conclusions of law made at the preliminary injunction stage are often based
on incomplete evidence and a hurried consideration of the issues; and
second, different standards apply in the two contexts (reasonable likelihood
of success on an injunction, and the existence of any genuine issues of
material fact on summary judgment).
Id. There is no error in adopting the findings at the preliminary injunction stage if “the
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record as a whole supports the finding that there is no material issue of fact.”
Communications Maint., Inc. v. Motorola, Inc., 761 F.2d 1202,1206 (7th Cir. 1985). The Court
previously found that Love failed to demonstrate a reasonable likelihood of success on
his injunction, but at summary judgment the Court must determine if there are any
genuine issues of material fact. The Court found that there were genuine issues of
material fact which prevented summary judgment.
Contrary to Dr. Myers’s assertion that the Court did not consider his medical
decisions and misread Dr. Bozdech’s recommendation, the Court considered both of
those issues in ruling on the summary judgment. But the Court found that Love’s
testimony about his compliance with the initial course of treatment and his continued
symptoms created an issue of fact. The Court did not rely on an improper opinion of
Love’s, as Dr. Myers suggests, but relied on his testimony that he took the enemas as
prescribed (Doc. 129-1, pp. 38-39, 40). Love testified that the records were wrong because
the nurses reported that he flushed the enemas down the toilet (Doc. 129, p. 5), and he
testified that he took the enemas in the shower area which had no access to a toilet
(Doc. 129-1, p. 39). Thus, there was evidence in the record to suggest that the nursing
notes were inaccurate. The Court also found evidence in the record that Dr. Myers
continued with enemas for six months, well longer than he, himself, testified was typical
(Doc. 129-2, p. 2). Further, the note from Dr. Bozdech indicated that Love should continue
for two to four weeks, and if not effective, “the next step would be to place him on a more
potent immunosuppressant” (Doc. 137, p. 82). Although Dr. Myers indicates that
continuing with the enema treatment was appropriate because Love was noncompliant
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with the treatment, there are disputes of fact as to how compliant or non-compliant he
was with the treatment. Thus, the Court found enough evidence in the current record to
create an issue of fact which prevented the awarding of summary judgment for Dr.
Myers. The Court does not find any mistake of fact in its decision.
For the reasons stated above, the Court DENIES Dr. Myers’s (Doc. 150) motion to
reconsider. The Court will set the case for status conference by separate order to discuss
referring the case to mediation and setting a firm trial date.
IT IS SO ORDERED.
DATED: August 1, 2022
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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