Holland v. Gary The City of et al

Filing 345

OPINION AND ORDER The Court DENIES the Motion to Correct Errors and to SetAside the Orders of December 27, 2011 and December 6, 2012" DE 321 , and the Motion to Correct Errors and to Set Aside the Orders of December 27, 2011, December 6, 2012 and January 8, 2013" DE 326 . Signed by Magistrate Judge Paul R Cherry on 3/5/13. cc:pltf(kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT HOLLAND,
Plaintiff,
v.
THE CITY OF GARY, et al.,
Defendants.

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CAUSE NO.: 2:10-CV-454-JD-PRC

OPINION AND ORDER
This matter is before the Court on a “Motion to Correct Errors and to Set Aside the Orders
of December 27, 2011 and December 6, 2012" [DE 321], filed by Plaintiff Holland on January 7,
2013, and a “Motion to Correct Errors and to Set Aside the Orders of December 27, 2011, December
6, 2012 and January 8, 2013" [DE 326], filed by Plaintiff Holland on February 4, 2013. On February
18, 2013, Defendants Lake County Board of Commissioners, Sheriff Dominguez and Warden of the
Lake County Jail (the “Lake County Defendants”) filed a response to the February 4, 2013 Motion.
Plaintiff has not filed a reply and the time to do so has expired.
BACKGROUND
The Plaintiff, proceeding in this matter pro se, filed his Complaint in this Court on November
15, 2010. The Complaint includes two counts of police misconduct alleged against seven
defendants, including municipal entities and officers in their official capacities.
On December 22, 2010, Lake County Sheriff Dominguez and the Warden of the Lake
County Jail filed Answers. On December 23, 2010, the City of Gary, Mayor Rudy Clay, City of
Gary Chief of Police, Johnny Gill, and Officer Termell Williams (the “Gary Defendants”) filed an
Answer. On January 3, 2011, the Lake County Board of Commissioners filed its Answer.
On December 27, 2011, the Court entered an Order granting in part the Motion for Summary

Judgment filed by Defendants the City of Gary, City of Gary Chief of Police, Rudy Clay, Johnny
Gill, and Tremell Williamson, leaving only two claims pending against the Gary Defendants: abuse
of process and intentional infliction of emotional distress. On December 6, 2012, the Court entered
an Order granting the second Motion for Summary Judgment filed by the Gary Defendants, leaving
the Lake County Defendants as the only remaining defendants in the case.
On January 8, 2013, the Court granted the Motions for Summary Judgment filed by
Defendant Lake County Board of Commissioners and Defendants Sheriff Dominguez and the
Warden of the Lake County Jail, and denied Plaintiff Holland’s Motion for Summary Judgment.
On January 7, 2013, Plaintiff Holland filed the Motion to Correct Errors and to Set Aside the
Orders of December 27, 2011 and December 6, 2012, requesting reconsideration of the Court’s
Orders granting summary judgment to the Gary Defendants. On February 4, 2013, Plaintiff Holland
filed the instant Motion to Correct Errors and to Set Aside the Orders of December 27, 2011,
December 6, 2012 and January 8, 2013, including an additional request that the Court reconsider its
grant of summary judgment to the Lake County Defendants. On February 18, 2013, the Lake
County Defendants filed a response. Plaintiff Holland has not filed a reply and the time to do so has
passed.
The parties orally agreed on the record to have this case assigned to a United States
Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this
case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
STANDARD OF REVIEW
In the title of the documents, Plaintiff Holland has identified the requested relief as correcting
errors and setting aside orders, pursuant to Federal Rules of Civil Procedure 59 and 60.

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Federal Rule of Civil Procedure 60 provides for relief from a judgment or order for:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “Rule 60(b) relief is an extraordinary remedy and is granted only in
exceptional circumstances.” Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625,
628 (7th Cir.1997).
Federal Rule of Civil Procedure 59(e) provides that, “[a]ny motion to alter or amend
judgment shall be filed no later than 28 days after entry of the judgment,” Fed.R.Civ.P. 59(e).
Plaintiff Holland filed the Motion at [DE 321] in time to challenge the Court’s Order of December
6, 2012, granting summary judgment to the Gary Defendants, and filed the Motion at [DE 326] in
time to challenge the Court’s Order of January 8, 2013, granting summary judgment to the Lake
County Defendants. A Rule 59(e) motion “must clearly establish either a manifest error of law or
fact or must present newly discovered evidence.” LB Credit Corp. v. Resolution Trust Corp., 49
F.3d 1263, 1267 (7th Cir. 1995) (quoting Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268
(7th Cir.1986)). However, Rule 59(e) motions do not give a party the opportunity to rehash old
arguments or to present new arguments “that could and should have been presented to the district
court prior to the judgment.” Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (citing LB
Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995))

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Brought under any Rule, a motion for “[r]econsideration 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). Instead,
a motion to reconsider is only appropriate where a court has
misunderstood a party, where the court has made a decision outside
the adversarial issues presented to the court by the parties, where the
court has made an error of apprehension (not of reasoning), where a
significant change in the law has occurred, or where significant new
facts have been discovered.
Broaddus v. Shields, 665 F.3d 846, 860 (7th Cir. 2011) (citing Bank of Waunakee v. Rochester
Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990)). “Such problems [that are appropriate for
reconsideration] rarely arise and the motion to reconsider should be equally rare.” Bank of
Waunakee, 906 F.2d at 1191 (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D.
99, 101 (E.D.Va.1983)).
ANALYSIS
In the instant Motions, Plaintiff Holland requests that the Court reconsider a number of its
Orders in this case. Although in the caption and introductory statements he identifies the orders
granting summary judgment to Defendants, he also raises objections to a large number of the orders
issued by the Court in this case. Indeed, Plaintiff Holland even requests that the Court reconsider
motions that were ruled on in his favor. See, e.g., Order of May 20, 2011, granting Plaintiff’s Motion
to Compel [DE 82]; Order of May 20, 2011, granting Plaintiff’s Request for an Order for the
Defendants to Preserve Evidence [DE 83].
Plaintiff argues that the Gary Chief of Police has not answered or defended in the case. The
docket clearly shows, however, that the Gary Chief of Police, by counsel, filed an Answer, at [DE 28],
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and Motions for Summary Judgment, at [DE 135 and 244]. Plaintiff Holland also re-raises arguments
about his desire to amend his Complaint and to be appointed counsel. No new arguments are included,
and the Court has addressed his motions for counsel multiple times in great detail. [DE 81, 111, 169,
260, 286]. Likewise, the Court has ruled on Plaintiff Holland’s motions to compel and other motions
involving discovery disputes. He was successful on several of those Motions, see, e.g., Order of May
20, 2011, granting Plaintiff’s Motion to Compel [DE 82]; Opinion and Order of April 16, 2012,
granting in part Plaintiff’s Motion to Compel [DE 263]. Because of the vast amount of discovery
requested by Plaintiff Holland in this case and the fact that he is a pro se litigant, the Court afforded
additional opportunities for Plaintiff Holland to clarify what relevant discovery requests were ignored
or the subject of inappropriate objections. See Order of December 27, 2011, granting leave for
Holland to address individual discovery requests deemed inadequate [DE 202]; Opinion and Order
of April 16, 2012, granting leave for Plaintiff Holland to specifically identify outstanding discovery
requests [DE 263]. There is no newly-discovered evidence or change in the law governing these
issues, and Plaintiff Holland has not identified any error of apprehension by the Court.
The bulk of Plaintiff Holland’s Motions contains argument that the Court erred in its grant of
summary judgment to Defendants in this case. Plaintiff Holland reargues all of the motions for
summary judgment, including arguments already included in his Motion to Reconsider the Gary
Defendant’s first Motion for Summary Judgment, denied by this Court on April 4, 2012 [DE 262].
Plaintiff Holland does not identify any newly-discovered evidence. The instant Motions to Reconsider
merely rehash legal theories and arguments already addressed by the Court or add new theories and
arguments that should have been advanced in his original Motions for Summary Judgment or
responses to Defendants’ Motions. There has been no significant change in either the facts or the law

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since the Court’s prior Orders and the Motions to Reconsider will therefore be denied.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES the “Motion to Correct Errors and to Set
Aside the Orders of December 27, 2011 and December 6, 2012" [DE 321], and the “Motion to Correct
Errors and to Set Aside the Orders of December 27, 2011, December 6, 2012 and January 8, 2013"
[DE 326].
SO ORDERED this 5th day of March, 2013.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

cc:

All counsel of record
Plaintiff, pro se

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