Lowe v. Anderson et al

Filing 139

ORDER denying 131 Motion for Reconsideration ; denying 132 Motion for Reconsideration. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RODERICK LOWE,
Plaintiff,
v.

Case No. 10-11189
Honorable Julian Abele Cook, Jr.

R.N. FLOSSIE ANDERSON, et al.
Defendants.

ORDER
This is a civil rights action brought by Roderick Lowe, on behalf of the decedent, Robin
Hackney, who was an inmate at the Mound Correctional Facility in Detroit, Michigan when he
died on December 15, 2005. In his capacity as Hackney’s next friend, Lowe commenced this
lawsuit in which he sued approximately fifty individuals and entities on such claims as (1) state
law allegations relating to gross negligence, and/or wanton and willful misconduct, and (2)
violations of the Fourth, Fifth, Eighth, and Fourteenth Amendment under 42 U.S.C. § 1983.
I.
On March 18, 2011, the Court entered an order which reflected a stipulation wherein the
parties agreed to dismiss the state law claims of gross negligence and/or willful misconduct
against Defendants Correctional Medical Services and Kosaraju. (ECF 79). Approximately one
year later (March 13, 2012), the Court granted the motions for summary judgment that had been
filed on behalf of Kosaraju and Correctional Medical Services with respect to Fourth, Fifth, and
Fourteenth Amendment issues. However, the Court rejected these Defendants’ applications for
the entries of summary judgements relating to Lowe’s Eighth Amendment claims. (ECF 126).

Kosaraju and Correctional Medical Services now seek reconsideration with respect to the
Eighth Amendment claims.
II.
The Local Rules of the Eastern District of Michigan provide that “[a] motion for
rehearing or reconsideration must be filed within 14 days after entry of the judgment or order.”
E.D. Mich. LR 7.1(h)(1). Moreover, a party who seeks to obtain a rehearing or reconsideration
of an order “must not only demonstrate a palpable defect by which the court and the parties and
other persons entitled to be heard on the motion have been misled but also show that correcting
the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). Such
motions will not be granted if they “merely present the same issues ruled upon by the court,
either expressly or by reasonable implication.” Id.
III.
As an initial matter, the Court notes - with significance - that the present motions are
untimely. Motions for reconsideration must be filed not later than 14 days from the date of entry
of the challenged order or judgment. E.D.Mich. LR 7.1(h)(1). However, a glance at the official
record in this cause reveals the order, which is the subject of the Defendants’ objection, was
entered on March 13, 2012. (ECF 126). The motions for rehearing by Kosaraju and Correctional
Medical Services were filed on March 30, 2012 - three days too late. While Kosaraju and
Correctional Medical Services assert that they are entitled an additional three days pursuant to
Fed. R. Civ. P. 6(d) and 5(b)(2)(e), this extension applies only to those instances where parties
must act within a specified time after service. As explicitly stated in the Local Rule, the 14 day
period runs from date of entry of the challenged order - not from the date of service. This failing
- even when standing alone - would constitute sufficient grounds upon which to deny the

movants’ pending motion. See Majchrzak v. Cnty. of Wayne, No. 10-13971, 2011 WL 6739223,
at *9 (E.D. Mich. Dec. 22, 2011) (motion for reconsideration may be denied on basis of
untimeliness alone). However, for the reasons that follow, the motion, which is now before the
Court, would have been denied even if it had been timely filed.
Here, Kosaraju asserts that reconsideration of the March 13, 2012 order is warranted
because, in her view, there are no genuine issues of a material fact to be resolved. However, the
Court notes that she has merely presented those same arguments which were advanced in her
motion for summary judgment. In its examination of the then-pending dispositive motion, the
Court concluded that there were questions of a material fact as to (1) the scope of the treatment
that Hackney received under Kosaraju’s care, and (2) whether Kosaraju had acted with
deliberate indifference while the deceased was under her professional care.
Kosaraju also argues that this Court should reconsider its decision because, in her view,
Lowe failed to meet his burden of proof on the issue of proximate causation. She notes that the
autopsy report indicated that Hackney died as the result of viral myocarditis. Kosaraju
maintains that viral myocarditis is unrelated to hypertension Thus, Kosaraju submits that her
treatment of Hackney’s hypertension cannot be characterized as the proximate cause of his
death. However, the Court noted, in rejecting Kosaraju’s dispositive motion, that there were and continue to be - genuine issues of a material fact as to what treatment Hackney received
under her care.
Correctional Medical Services also seeks a reconsideration of the order that denied its
motion for summary judgment relating to Lowe’s Eighth Amendment claims. Correctional
Medical Services submits three arguments in support of its position.
First, Correctional Medical Services contends that the Court was mistaken in its reliance

on Doe v. Claiborne, 103 F.3d 495, 508 (6th Cir.1996) (to establish a municipal liability claim
under “inaction” theory, plaintiff must demonstrate (1) existence of clear and persistent pattern
of illegal activity; (2) notice or constructive notice by defendant; (3) tacit approval of
defendant's approval of claimed unconstitutional conduct, such that its deliberate indifference in
its failure to act can be said to amount to official policy of inaction; and (4) the defendant's
custom was “moving force” or direct causal link in claimed constitutional deprivation.)
Although Correctional Medical Services correctly points out that Doe involved an alleged
failure to prevent sexual abuse within a public school setting, the elements of a municipality
liability under a policy of inaction theory are the same in the context of a violation of a
prisoner’s Eighth Amendment rights. See Braswell v. Corrections Corp. of America, 419
F.App’x 622, 628 (6th Cir.2011) (applying failure to act and moving force analyses to
prisoner’s Eighth Amendment claims).
Correctional Medical Services incorrectly asserts that Lowe is asserting municipal
liability in this case solely on the basis of a “failure to train or supervise” theory. However, it
should be noted that Lowe is seeking to establish liability under “failure to act” and “failure to
train” theories. Compl. ¶¶ 19-23. Therefore, the Court properly looked to Doe for guidance.
Next, Correctional Medical Services asserts that the Court found that (1) the individuals,
who were involved in Hackney’s care from December 2004 to July 2005, were its employees;
(2) there was a clear and persistent pattern of illegal activity at the Mound Correctional Facility;
(3) Correctional Medical Services had notice of any such illegal activity; and (4) Correctional
Medical Services tacitly approved the unconstitutional conduct. This argument misses the mark,
in that the Court did not make these findings, as characterized by this Defendant. Rather, the
Court found that there was a genuine issue of a material fact regarding Correctional Medical

Services’ policies and customs regarding its employees and contractors at the Mound
Correctional Facility which was sufficient to preclude the entry of a summary judgment.
Finally, Correctional Medical Services submits that the Court incorrectly found that its
policies and customs were the “moving force” behind Hackney’s injuries. However, the Court
made no such finding. Rather, it concluded that because genuine questions of fact exist
regarding Hackney’s care, and Correctional Medical Services’ responsibility and involvement
in that care, any “moving force” analysis would be premature.
IV.
Therefore, the motions to reconsider by these Defendants are denied. (ECF 131 and
132).
IT IS SO ORDERED.

Date: May 15, 2012

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Court Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on May 15, 2012.
s/ Kay Doaks
Case Manager