BOLDEN v. MARBERRY et al
Filing
135
ORDER granting 72 Motion for Reconsideration and VACATES its Entry on Motion for Summary Judgment with regard to all of the Defendants except R.D. Shepherd (SE) and grants the remaining Defendants leave to file new motion(s) for summary jud gment addressing those claims. The Court also DENIES WITHOUT PREJUDICE Dr. Websters second motion for summary judgment 91 so that the arguments made therein may be included in Dr. Websters new motion for summary judgment. Signed by Judge William T. Lawrence on 3/8/2012. (SMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ROBERT L. BOLDEN, SR.,
)
)
Plaintiff,
)
)
vs.
) CAUSE NO. 2:09-cv-312-WTL-WGH
)
HELEN J. MARBERRY, Warden, United
)
States Penitentiary, Terre Haute, Indiana, et al., )
)
Defendants.
)
ENTRY ON MOTIONS TO RECONSIDER
Plaintiff Robert L. Bolden, Sr., who suffers from juvenile diabetes, alleges in this case
that the Defendants have failed in a variety of respects to provide him with proper medical and
dental care during his incarceration in the Special Confinement Unit at the Federal Correctional
Complex in Terre Haute, Indiana. When all of the Defendants moved for summary judgment on
all of Bolden’s claims, the Court granted the motion with one exception: it denied summary
judgment with regard to Bolden’s claim against Defendant Thomas Webster, M.D., in his
individual capacity with regard to his treatment of Bolden’s diabetes prior to July 11, 2007.
Bolden has now filed a motion to reconsider several aspects of the Court’s ruling (dkt.
no. 72). First, he argues that the Court improperly granted summary judgment in favor of the
Defendants in their official capacities because he believes he can pursue official capacity claims
for injunctive relief. Second, he argues that the Court erred in granting summary judgment in
favor of all of the Defendants except R.D. Shepherd with regard to his claim that they failed to
provide him with a proper diabetic diet. Third, he takes issue with the Court’s analysis of his
claim that the same Defendants failed to properly respond when he had episodes of
hypoglycemia and hyperglycemia. Fourth, he argues that the Court erred in granting summary
judgment in favor of Dr. Webster with regard to the treatment of Bolden’s diabetes after July
10, 2007. Finally, he argues that the Court should not have granted summary judgment to any
of the Defendants except Shepherd1 with regard to his allegation that he did not receive
adequate dental care.
In their response to Bolden’s motion, the Defendants argue that a party who loses a
motion for summary judgment may not move to reconsider in order to rehash the same
arguments or advance new arguments that could have been made the first time around, and that
is exactly what Bolden is attempting to do. And the Defendants are, of course, correct that, as a
general rule, summary judgment is intended to be the “‘put up or shut up’ moment in the life of
a case,” see, e.g., In re Airadigm Communications, Inc., 616 F.3d 642, 657 (7th Cir. 2010), not a
practice run. The Defendants’ response therefore is not surprising. What is surprising,
however, is that shortly after asserting these arguments against Bolden, Dr. Webster filed what
he terms as a second motion for summary judgment, but which really is his own motion to
reconsider in that it raises an argument that could have been made in the original motion.
The Court is now in a bit of a quandary. If, in fact, Dr. Webster has meritorious
arguments that he failed to present the first time around but which entitle him to summary
judgment, it would, of course, be the most efficient course of action to review those arguments
now rather than proceed with a fruitless trial. But it would unfair to hold firm to the “put up or
shut up” rule with regard to Bolden and yet disregard it with regard to Dr. Webster.
The fact is that neither side did an exemplary job of presenting all of the issues and
citing to appropriate evidence the first time around. The Court spent an extraordinary amount
1
Bolden concedes that Shepherd is entitled to absolute immunity.
2
of time and effort sifting through extensive records and trying to make sense of them. In the
end, as is noted in the Entry, the Court was left with the conclusion that “while it is not entirely
impossible that Bolden might have made a case against some or all of the non-medical
Defendants, it is neither required nor appropriate for the Court to ‘sift through the record and
make [Bolden’s] case for him.’” Entry on Motion for Summary Judgment at 13-14 (footnote
omitted) (citing United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir.
2010)). The Court is now left with the conclusion that justice will be best served by granting
Bolden’s motion to reconsider and permitting him another opportunity to defend against the
Defendants’ motion for summary judgment, while at the same time giving Dr. Webster the
opportunity to raise his new issue.
Accordingly, Bolden’s motion to reconsider (dkt. no. 72) is GRANTED. The Court
hereby VACATES its Entry on Motion for Summary Judgment with regard to all of the
Defendants except R.D. Shepherd as to the claims set forth below and grants the remaining
Defendants leave to file new motion(s) for summary judgment2 addressing those claims. The
Court also DENIES WITHOUT PREJUDICE Dr. Webster’s second motion for summary
judgment (dkt. no. 91) so that the arguments made therein may be included in Dr. Webster’s
new motion for summary judgment. The claims now remaining in this case are as follow:
2
The Court notes that Bolden recently has obtained new counsel, and it is the Court’s
understanding that a conflict has been identified which may necessitate some or all of the
Defendants obtaining new counsel. The Court recognizes that if some of the Defendants obtain
separate counsel they may wish to file separate motions for summary judgment, and of course
they may do so. No Defendant may file (or join in) more than one motion for summary
judgment, however.
3
1.
Bolden’s claim for injunctive relief against the remaining Defendants3 in their
official capacities;4
2.
Bolden’s claim against the remaining Defendants based upon the failure to
provide him with a proper diabetic diet;
3.
Bolden’s claim against the remaining Defendants for failing to properly respond
to his need for emergency medical care when he had episodes of hypoglycemia
and hyperglycemia;
4.
Bolden’s claim against Dr. Webster with regard to the treatment of his diabetes
both before and after July 2007; and
5.
Bolden’s claim against the remaining Defendants for failing to provide him with
adequate dental care.
The parties may raise whatever arguments they wish and submit whatever evidence they have
regarding these claims, without regard to what has or has not been previously raised or
addressed by the Court. In other words, the slate is clean.
The Court notes that Magistrate Judge Hussman has a status conference scheduled in
this cause next month. Accordingly, the Court requests that Magistrate Judge Hussman arrive at
an appropriate briefing schedule with counsel regarding the filing of new motions for summary
judgment. However, all parties should note the following: In order to aid in and expedite the
Court’s consideration of the parties’ arguments, nothing may be incorporated by
3
To be clear, “the remaining Defendants” refers to all Defendants except Shepherd.
4
The Court notes that in order to survive summary judgment on this claim Bolden will
have to assert some legal basis for it other than Bivens.
4
reference in any of the parties’ summary judgment briefs. The Court will consider only
those arguments that are set forth in the new briefs filed by the parties; the Court will not
review any previous filings, even if they are referenced within a brief. The Court also will
consider only the evidence that is specifically cited within those briefs and submitted as
exhibits to those briefs. Each exhibit referenced in a brief must be filed as an attachment
to that brief (even if it appears elsewhere in the court’s electronic file in this case) and
must be given a descriptive name (e.g. Bolden Affidavit). See Local Rule 5-6(a)(2). In
addition, the parties shall comply with Local Rule 5-6(a)(3), which requires that exhibits
be “limited to excerpts that are directly germane to the main paper’s subject matter.”
The parties are encouraged to confer in advance of the summary judgment deadline
established by Magistrate Judge Hussman in order to determine whether Bolden is willing to
stipulate that summary judgment is appropriate with regard to any of the remaining claims as to
any of the remaining Defendants. For example, the Court notes that there does not appear to be
a basis for obtaining injunctive relief against Defendant Veach, inasmuch as he is no longer the
warden at the prison, and there may be other claims which Bolden’s new counsel determines are
not viable after reviewing the evidence of record.
SO ORDERED: 03/08/2012
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
5
Copies to all counsel of record via electronic notification
6
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?