United States District Court, N.D. Indiana, Hammond Division
ROBERT L. HOLLEMAN, Plaintiff,
JOHN BUNCICH, et al., Defendants.
OPINION AND ORDER
P. Simon Judge
L. Holleman filed this civil rights lawsuit relating to his
six day stay at the Lake County Jail in 2013. He claims that
he was deprived of his right to a medically prescribed
gluten-free diet for the six days he spent at the Lake County
Jail in 2013. Holleman suffers from celiac disease, and
although his stay in Lake County was brief, six days of a
gluten-filled diet caused him great distress including
repeated diarrhea, bloating and bloody hemorrhoids. Holleman
brought this case against several defendants but my present
concern is only on the case against Dr. Forgey, the jail
doctor. Over a year ago, Forgey moved for summary judgment,
and in that motion, Forgey provided an undisputed, sworn
declaration that: (1) the Lake County Jail had a special
gluten-free diet; (2) Dr. Forgey ordered a gluten-free diet
for Mr. Holleman; and (3) Dr. Forgey did not cause the
problems with Holleman's meals nor was there anything to
indicate that he stood in the way of Holleman receiving
adequate nutrition. ECF 104. Based on these undisputed facts,
I granted summary judgment in favor of Dr. Forgey. ECF 166.
counsel was appointed to represent Holleman in his case
against the remaining defendants, and I allowed the parties
to conduct further discovery. In that process, Holleman
through counsel was able to discover facts that he says calls
into question my earlier grant of summary judgment for Dr.
Forgey. Holleman has now filed a motion to reconsider (ECF
202) that summary judgment order, asserting that newly
discovered evidence contradicts the facts contained in Dr.
what the new evidence reveals. In 2012, Dr. Forgey created a
“Restricted Diet” at the jail, which he directed
to be served to those inmates requiring a gluten-free diet,
such as Holleman. ECF 214-1 at pp. 12-15; ECF 203-5 at pp.
115, 133; ECF 203-4 at pp. 159-161, 182. But Holleman has now
submitted persuasive evidence-scientific testing-that the
“Restricted Diet” actually is not gluten free.
ECF 63-2; ECF 203-4 at pp. 47, 52, 136-137; ECF 203-9; ECF
203-7 at pp. 28-29. In response, Dr. Forgey argues that this
evidence, though new to this case, is not “newly
discovered evidence, ” and should not be used to
reconsider the motion for summary judgment.
8, 2017, I heard oral argument on the motion to reconsider,
where Dr. Forgey's counsel admitted that, contrary to the
previously submitted declaration, Dr. Forgey did have a role
in determining meal menus at the jail and that the jail did
not have an available gluten-free diet in 2013. The matter is
now before me to determine whether the new evidence is
sufficient to cause me to reconsider my earlier grant of
Justice requires that the motion to reconsider be granted
under Rule 54(b).
threshold matter, the parties disagree as to whether I can
consider Holleman's new evidence at this stage in the
proceedings. Dr. Forgey argues that this evidence cannot be
considered because it is not “newly discovered
evidence.” Dr. Forgey asserts that Holleman could have
discovered all of this evidence on his own if he would have
simply used reasonable diligence. ECF 211 at pp. 5-6. If this
case merely involved the question of whether I should
consider newly discovered evidence, I may need to ask whether
Holleman exercised reasonable diligence in trying to discover
this evidence while the motion for summary judgment was
pending. Rothwell Cotton Co. v. Rosenthal & Co.,
827 F.2d 246 (7th Cir. 1987). But the issue in this case
involves more than just “newly discovered
evidence.” It involves Dr. Forgey making misleading,
inaccurate, and perhaps even false statements in his earlier
declaration that led me to believe that certain facts were
true, when it is now clear that they are not.
have broad discretion to reconsider the grant of summary
judgment and reopen the case against Dr. Forgey under Rule
54(b) of the Federal Rules of Civil Procedure. See Moses
H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
12 (1983) (“[E]very order short of a final decree is
subject to reopening at the discretion of the district
judge.”). Unlike a motion to reconsider a final
judgment, which must meet the more stringent requirements of
Federal Rules of Civil Procedure 59 or 60, “a motion to
reconsider an interlocutory order may be entertained and
granted as justice requires.” Akzo Coatings, Inc.
v. Aigner Corp., 909 F.Supp. 1154, 1160 (N.D. Ind.
of an interlocutory order may be appropriate when the facts
or law on which the decision was based change significantly
after issuance of the order. Bank of Waunakee v.
Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th
justice requires reconsidering the motion for summary
judgment in light of the entire record now before me. At the
very least, the record establishes that there are many
genuine issues of disputed fact and that some material
statements previously made in Dr. Forgey's declaration
may be untrue.
Dr. Forgey's motion for summary judgment will be denied
because the new evidence reveals that there are genuine
disputes of material fact.
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Not every dispute between the parties makes summary judgment
inappropriate, however, and “[o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.” Id. To determine whether a genuine
issue of material fact exists, I must construe all facts in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party
opposing a properly supported summary judgment motion may not
rely merely on allegations or denials in his or her own
pleading, but rather must “marshal and present the
court with the evidence she contends will prove her
case.” Goodman v. Nat'l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
case, Holleman alleged Dr. Forgey violated the Eighth
Amendment by failing to take adequate steps to ensure that he
received his medically prescribed diet. Under the Eighth
Amendment, inmates are entitled to adequate medical care.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). To
establish liability, a prisoner must satisfy both an
objective and subjective component by showing: (1) that his
medical need was objectively serious; and (2) that the
defendant acted with deliberate indifference to that medical
need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A
medical need is “serious” if it is one that a
physician has diagnosed as mandating treatment, or one that
is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention. Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005). For a medical
professional to be held liable for deliberate indifference,
he or she must make a decision that represents “such a
substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person
responsible actually did not base the decision on such a
judgment.” Jackson v. Kotter, 541 F.3d 688,
697 (7th Cir. 2008).
original motion for summary judgment, Dr. Forgey claimed that
he was not deliberately indifferent to Holleman's
condition. Nearly two years ago, Dr. Forgey provided evidence
that he did everything he could be expected to do for
Holleman to obtain a gluten-free diet. He led me to believe
that the jail had an available gluten-free diet to
accommodate Holleman's needs, and that he ordered that
diet for Holleman. He also stated that his duties at the jail
“did not include the determination of meal
menus.” ECF 104 at ¶ 5. At that time, it appeared