Harris v. Smith et al

Filing 54

Memorandum and Order. As outlined in this Order, Plaintiff's motion for reconsideration is denied 46 . Signed by Magistrate Judge Kenneth S. McHargh on 7/14/11. (R,N)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DWAYNE HARRIS,
Plaintiff,
v.
KEITH SMITH,
Defendant.

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Case No. 1:10CV1313

MEMORANDUM
AND ORDER
Magistrate Judge McHargh

McHARGH, MAG. J.
The original plaintiff in this action, Wayne Harris, filed a complaint against the
original defendants Mansfield Correctional Institution (“MANCI”), Warden Keith
Smith, Ohio Department of Rehabilitation and Correction (“ODRC”), Director Ernie
Moore, Ohio Adult Parole Authority (“OAPA”), Deputy Director Harry E. Hageman,
and OAPA Chief Cynthia Mausser. Mr. Harris alleged that Ohio prisons, including
MANCI, were overcrowded and unsanitary due to lengthy sentences being served by
inmates convicted prior to the enactment of Ohio Senate Bill 2.
However, on August 10, 2010, District Court Judge Aaron Polster dismissed
Plaintiff’s claims against ODRC Director Ernie Moore, OAPA Deputy Director Harry
Hageman, and OAPA Chief Cynthia Mausser finding that no facts in the pleading
reasonably associated these parties with any of the claims set forth by Plaintiff. The
Court then left the case to proceed “solely on Plaintiff’s Eighth Amendment claim

against MANCI Warden Keith Smith concerning the conditions of confinement.” (Doc.
5).
Defendant Smith filed an answer six months prior to filing his motion to dismiss
on April 8, 2011. (Doc. 12, 30). Defendant’s motion was granted on June 10, 2011, and
all of Plaintiff’s claims were thereby dismissed. (Doc. 45).
On June 17, 2011, Harris filed a Motion for Reconsideration of the Court’s ruling
on Defendant’s Motion to Dismiss. (Doc. 46). Smith filed a memorandum in opposition
and Plaintiff filed his Reply soon thereafter. (Doc. 47, 50). Warden Smith then filed
his Surreply on June 30, 2011. (Doc. 51).
I. MOTION FOR RECONSIDERATION
The Federal Rules of Civil Procedure do not explicitly provide for a “motion for
reconsideration.” In the Sixth Circuit, such a motion, if served within ten days of the
entry of judgment, is considered a motion to alter or amend judgment, pursuant to
Fed.R.Civ.P. 59(e). Stubblefield v. Skelton, 117 F.3d 1421, 1997 WL 397240, at *2 (6th
Cir. 1997) (Table, text in WESTLAW) (citing Huff v. Metropolitan Life Ins. Co., 675
F.2d. 119, 122 (6th Cir. 1982)). Harris filed his motion to reconsider within ten days
of the District Court's order granting Defendant’s motion to dismiss. Accordingly,
Harris’ motion is properly considered a Rule 59(e) motion to alter or amend.
However, motions for reconsideration do not allow a losing party to renew
arguments already considered and rejected by the court or “to proffer a new legal
theory or new evidence to support a prior argument when the legal theory or argument
could, with due diligence, have been discovered and offered during the initial
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consideration of the issue.” McConocha v. Blue Cross & Blue Shield Mut. of Ohio, 930
F.Supp. 1182, 1184 (N.D. Ohio 1996) (quoting In re August, 1993 Regular Grand Jury,
854 F.Supp. 1403, 1408 (S.D. Ind.1994)). Generally, only three situations justify a
district court’s altering or amending of its own judgment, namely: “(1) a clear error of
law; (2) newly discovered evidence that was not previously available to the parties; or
(3) an intervening change in controlling law.” Rodriguez v. Tenn. Laborers Health &

Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004) (citing Reich v. Hall Holding Co.,
990 F.Supp. 955, 965 (N.D. Ohio 1998)). None of these situations is present in the
instant case.
II. ANALYSIS
Plaintiff raises multiple arguments in support of his request for reconsideration.
Harris argues that: (1) failure to exhaust administrative remedies is an affirmative
defense that was required to first be raised in Defendant’s answer; (2) District Judge
Aaron Polster screened the Complaint and ruled that the case should proceed forward;
and (3) Ohio’s inmate grievance procedures are inadequate.
1. Failure to Exhaust as an Affirmative Defense
Plaintiff argues that the Court overlooked Warden Smith’s failure to plead the
affirmative defense of failure to exhaust administrative remedies in its answer. Harris
asserts that this constitutes as a clear error of law. However, Smith’s failure to plead
an affirmative defense does not necessarily result in the waiver of the defense. Smith

v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). A court should consider the unique facts
and circumstances of a case to determine if it would be appropriate to consider an
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improperly plead affirmative defense. Old Line Life Ins. Co. of America v. Garcia, 418
F.3d 546, 550 (6th Cir. 2005). “The Supreme Court has held that the purpose of Rule
8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut
it.” Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993) (citing

Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313,
350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971)).

If, through means other than the

pleadings, a plaintiff receives notice of the affirmative defense, then he is not
prejudiced by the defendant’s failure to comply with Rule 8(c). Coffey, supra (quoting

Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989)). In the instant
case, Defendant’s dispositive motion put Harris on notice of the failure to exhaust
defense. Harris was given the opportunity to respond to this defense and did so in his
Response to Defendant’s Motion to Dismiss. (Doc. 34). Moreover, Harris filed an
Amended Opposition to Defendant’s Motion as well. (Doc. 36). Therefore, Harris was
not prejudiced by Smith’s failure to plead exhaustion as an affirmative defense in his
answer.
2. Judge Polster’s Screening of the Complaint
Plaintiff further contends that Judge Polster screened the Complaint and
determined that the case should move forward. Thus, Plaintiff concludes, it was error
for the Court to subsequently dismiss his Complaint. However, this is simply a
rehashed argument previously raised by Plaintiff and ruled upon by the Court. See
(Doc 34, 44). It is not the function of a motion to reconsider to renew arguments
already considered by a court. McConocha v. Blue Cross & Blue Shield Mut. of Ohio,
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930 F. Supp. 1182, 1185 (N.D. Ohio 1996) (citing In re August, 1993 Regular Grand

Jury, 854 F.Supp. 1403, 1408 (S.D. Ind. 1994)). Accordingly, the Court will not
reconsider Plaintiff’s argument regarding Judge Polster’s screening of the Complaint.
3. Adequacy of Ohio’s Grievance Procedure
Harris argues that Ohio’s inmate grievance procedures are inadequate because
Ohio Administrative Code 5120-9-31(B) provides that complaints relating to legislative
action or judicial proceedings are not grievable. However, Section B is not applicable
to the instant case. Pursuant to the order of Judge Polster, the Court was only to
consider Plaintiff’s Eighth Amendment claims against Warden Smith pertaining to the
conditions of his confinement. Thus, the issue at hand concerned neither a judicial
proceeding nor a legislative action, but the prison conditions at MANCI. As correctly
stated in this Court’s prior decision, Section M of Ohio Administrative Code 5120-9-31
was the section relevant to the Court’s review and subsequent decision.
Plaintiff’s final argument is also unavailing.

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Thus,

III. Conclusion
For the foregoing reasons, the undersigned DENIES Plaintiff’s motion for
reconsideration.

IT IS SO ORDERED.

/s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge

Date: July 14, 2011.

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