Weiss v. Shurpit et al

Filing 19

ORDER signed by Chief Judge William C Griesbach on 5/12/2018 Denying 11 Motion for Reconsideration. (cc: all counsel, via US Mail to Plaintiff) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARK A. WEISS,
Plaintiff,
v.

Case Nos. 18-C-318

P. SHURPIT, et al.,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION

Plaintiff Mark Weiss, who is representing himself, filed this action under 42 U.S.C. § 1983,
alleging that his civil rights were violated. In a screening order, the court dismissed Plaintiff’s claims
for failure to protect him from a chicken bone in his food and deliberate indifference to his throat
after choking. Plaintiff has filed a motion for reconsideration; for the reasons that follow, Plaintiff’s
motion will be denied.
A motion for reconsideration serves a very limited purpose in federal civil litigation. It
should be used only “to correct manifest errors of law or fact or to present newly discovered
evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quotation
omitted). “A ‘manifest 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) (quoting Sedrak v. Callahan, 987 F.Supp.
1063, 1069 (N.D. Ill. 1997)). Such motions are disfavored and should be “rare.” Bank of Waunakee
v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).

Here, Plaintiff’s motion contains no new evidence and points to no new controlling law.
Instead, Plaintiff reiterates his earlier arguments. Plaintiff asserts that the defendants responsible for
preparing the food were deliberately indifferent to the presence of the chicken bone. However, as
explained in the screening order, Plaintiff’s allegations, at most, alleged claims of negligence against
those preparing his food. Negligence is insufficient to state a claim of deliberate indifference.
Farmer v. Brennan, 511 U.S. 825, 835, 837 (1994). Because there was no allegations that any of
the defendants were aware of the chicken bone within the food, Plaintiff failed to state a claim for
deliberate indifference. Id. at 837 (explaining that “a prison official cannot be found liable under the
Eighth Amendment . . . unless the official knows of and disregards an excessive risk”).
Plaintiff reiterates his argument that other inmates had to shout to get the attention of guards,
who did not react as quickly as Plaintiff believes they should have reacted. As such, he argues they
failed to protect him from the harm from the chicken bone. However, in order to sustain a failure
to protect claim, Plaintiff had to allege facts sufficient to show “that the defendants had actual
knowledge of an impending harm easily preventable, so that a conscious, culpable refusal to prevent
the harm can be inferred from the defendant’s failure to prevent it.” Santiago v. Walls, 599 F.3d
749, 756 (7th Cir. 2010). The fact that other inmates realized Plaintiff was choking more quickly
than guards did is insufficient to state a claim. Furthermore, the guards could not have prevented
Plaintiff from choking on the bone. Plaintiff was in the best position to protect himself by taking
small bites and observing his food before he put it in his mouth. He was also in the best position to
dislodge the bone from his throat, as he apparently did without the guards performing the Heimlich
maneuver on him. Moreover, any harm caused to Plaintiff’s throat was caused by the chicken bone,

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not by the guards’ actions or inactions. As such, Plaintiff has failed to state a claim against the
guards.
Lastly, Plaintiff reiterates his argument that officers were deliberately indifferent to his serious
medical needs by failing to bring him to the nurse. However, this is directly contradicted by
Plaintiff’s Inmate Complaint form, which he submitted as an exhibit. ECF No. 1-1 at 5. In his
Inmate Complaint about the incident, Plaintiff states that he did go see the health services unit
because of his sore throat. Id. Additionally, Plaintiff alleges the officers were responsive once they
realized he was choking. They gave him water and told him to take his time to respond. As a result,
Plaintiff has failed to plead sufficient facts to state a claim of deliberate indifference to his medical
needs.
IT IS THEREFORE ORDERED that Plaintiff’s motion for reconsideration (ECF No. 11)
is DENIED.
Dated this 12th

day of May, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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