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Thompson v. City of Indianapolis

United States District Court, S.D. Indiana, Indianapolis Division

September 19, 2017

BILLIE THOMPSON, as personal representative of the ESTATE OF DUSTY HEISHMAN, Plaintiff,



         This matter is before the Court on a Motion for Reconsideration filed by Defendants Health and Hospital Corporation of Marion County (“HHC”) and Lance Cope (“Medic Cope”) (collectively, “Medical Defendants”) (Filing No. 59). Following a partial motion to dismiss filed by the Medical Defendants, the Court dismissed the state law wrongful death claim against HHC brought by Plaintiff Billie Thompson (“Thompson”), as personal representative of the Estate of Dusty Heishman (“Heishman”) (Filing No. 54 at 8). The Medical Defendants sought dismissal asserting Thompson was required by the Indiana Medical Malpractice Act (“MMA”) to first take those claim before a medical review panel. However, the Court denied the motion to dismiss as to all the other state law claims brought against the Medical Defendants. Id. The Medical Defendants ask the Court to reconsider the dismissal Order and grant dismissal as to the remaining state law claims. For the following reasons, the Court DENIES the Medical Defendants' Motion for Reconsideration.


         This Motion is properly classified as a motion to reconsider under Federal Rule of Civil Procedure 54(b) because no final judgment has been entered in this case. See Fed. R. Civ. P. 54(b) (“any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities”).

         The Court applies a similar standard as applied to motions to alter or amend a judgment under Rule 59(e). Motions to reconsider filed pursuant to Rule 54(b) or Rule 59(e) are for the purpose of correcting manifest errors of law or fact or to present newly discovered evidence not available at the time of briefing, and a motion to reconsider an order under Rule 54(b) is judged by largely the same standard as a motion to alter or amend a judgment under Rule 59(e). Katz-Crank v. Haskett, 2014 U.S. Dist. LEXIS 95144, at *6 (S.D. Ind. July 14, 2014); Woods v. Resnick, 725 F.Supp.2d 809, 827-28 (W.D. Wis. 2010).

         Motions to reconsider “serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 526 (N.D. Ind. 2009). The motion is to be used “where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted).

         The purpose of a motion for reconsideration is to ask the court to reconsider matters “properly encompassed in a decision on the merits.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989). The motion “will be successful only where the movant clearly establishes: (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (citation and quotation marks 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. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and quotation marks omitted).

         “Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (citation and quotation marks omitted). Relief pursuant to a motion to reconsider is an “extraordinary remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).


         The Court provides only a brief background of this case to begin its discussion. Thompson, representing the Estate of Heishman, filed this action alleging Fourth and Fourteenth Amendment violations pursuant to 42 U.S.C. § 1983, as well as numerous state law claims, surrounding Heishman's death following an arrest. The incident leading up to Heishman's arrest occurred on October 5, 2014, when Heishman was running through public streets naked. Law enforcement officers with the Indianapolis Metropolitan Police Department (“IMPD”) responded to the incident, and Heishman was subsequently charged with resisting law enforcement, battery resulting in bodily injury, criminal mischief, and public nudity.

         During the course of his arrest, Heishman did not readily cooperate with police, who in turn battered Heishman. Additionally, two civilian bystanders assisted the IMPD officers in containing Heishman. While trying to arrest Heishman, law enforcement officers used a Taser on his stomach and chest in an attempt to obtain compliance. This was not successful. At one point, officers held Heishman and directed him to the police transport wagon. However, once they got to the back of the transport wagon, Heishman stiffened his body, making it impossible for the officers to place him in the police vehicle. Heishman then put his feet on the vehicle and pushed back, resulting in the officers and Heishman stumbling backward. Eventually, multiple law enforcement officers were able to get Heishman to the ground and hold him there.

         Medic Cope and his EMT partner were dispatched to the area in response to a complaint of an animal bite incident. Soon after Medic Cope arrived at the scene, an IMPD officer approached him and asked that he first help with another person who was being combative. Medic Cope followed the officer and observed that Heishman was lying prone in the middle of the street, was handcuffed behind his back with leg shackles on, and had been tased. Medic Cope also observed that Heishman was struggling and fighting with officers who were holding him down. An officer indicated that he believed Heishman was intoxicated on PCP or other drugs. Medic Cope gave Heishman ten milligrams of Versed intramuscularly in his left deltoid muscle as a “chemical restraint for patient and crew safety.” (Filing No. 27-1 at 2.) Within a couple of minutes after the injection, Heishman calmed down.

         The IMPD and EMS crews picked up Heishman and placed him on a cot, laying him on his back. He was covered with a blanket and moved toward the ambulance. While moving to the ambulance, it became apparent that Heishman was no longer breathing, but it was difficult to assess his condition because of the darkness outside. Heishman's handcuffs and Taser probes were removed after he was placed inside the ambulance. CPR was started because Heishman had gone into respiratory and cardiac arrest. After approximately seven minutes of CPR, Heishman was revived. He was transported to Eskenazi Hospital and then transferred to Methodist Hospital the following day. Heishman had lost brain function and was treated with hypothermic therapy in an attempt to recover brain function. The attempts were futile, and Heishman died on October 13, 2014.

         On September 28, 2015, Thompson filed this action on behalf of the Estate of Heishman, alleging constitutional claims and state law claims against the Medical Defendants and other co-defendants. The Medical Defendants moved to dismiss the state law claims against them, asserting that the Court lacked subject matter jurisdiction based on Indiana's Medical Malpractice Act, which requires plaintiffs to first present state law medical negligence claims to a medical review panel before bringing the claims to court. The Court granted in part and denied in part the Medical Defendants' motion to dismiss, explaining that, with the exception of the wrongful ...

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