United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PLAINTIFF'S MOTION TO RECONSIDER
DISMISSAL OF DUSHAN ZATECKY AND INDIANA DEPARTMENT OF
CORRECTIONS AND MOTION TO AMEND COMPLAINT
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff Larry Best, Jr.'s
(“Best”) Motion to Reconsider Dismissal of Dushan
Zatecky and Indiana Department of Corrections and Motion to
Amend Complaint (Filing No. 117). Best filed this
lawsuit for violations of his Eighth, Ninth, and Fourteenth
Amendment rights against Defendants the State of Indiana,
Indiana Department of Correction (“IDOC”),
Superintendent Dushan Zatecky (“Zatecky”), and
IDOC staff John Safford, Jeffery King, Blaine Hurt, Walter
Peterson, and Herbert Duncan (collectively, “State
Defendants”), as well as Corizon Health, Inc.
(“Corizon”), and Paul A. Talbot, M.D. (“Dr.
Talbot”). He asserted claims for a failure to protect
him and for having a deliberate indifference toward his
health and safety. The State Defendants filed a motion to
dismiss, which the Court granted in part and denied in part
on September 14, 2017 (Filing No. 90). Best now asks
the Court to reconsider the dismissal of Defendants Zatecky
and IDOC and requests leave to amend his Complaint. For the
following reasons, the Court grants in part and
denies in part Best's Motion.
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
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).
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). A motion to reconsider under Rule 54(b)
also may be appropriate where there has been “a
controlling or significant change in the law or facts since
the submission of the issue to the Court.” Id.
Rule of Civil Procedure 15(a)(1) allows a party to amend its
pleading once as a matter of course within twenty-one days
after serving it, or “if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion
under Rule 12(b).” After a responsive pleading has been
filed and twenty-one days have passed, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Fed. R. Civ. Pro.
15(a)(2). The rule, however, “do[es] not mandate that
leave be granted in every case. In particular, a district
court may deny a plaintiff leave to amend his complaint if
there is undue delay, bad faith, or dilatory motive, or undue
prejudice, or futility of amendment.” Park v. City
of Chicago, 297 F.3d 606, 612 (7th Cir. 2002) (internal
citation and punctuation omitted). “Whether to grant or
deny leave to amend is within the district court's
discretion.” Campbell v. Ingersoll Milling Machine
Co., 893 F.2d 925, 927 (7th Cir. 1990).
Court provides only a brief background of this case to begin
its discussion. On September 26, 2016, Best filed this action
asserting claims under 42 U.S.C. § 1983 and state tort
law against the State Defendants, Corizon, and Dr. Talbot
(Filing No. 1). After spending several years in
administrative segregation at the Pendleton Correctional
Facility, Best was moved back into the general population at
the prison, and one month later, he was brutally attacked and
seriously injured by fellow inmates. He alleges the
Defendants failed to protect him and were deliberately
indifferent toward his health and safety.
was an inmate at the Pendleton Correctional Facility
(“Pendleton”) when the events giving rise to this
lawsuit occurred. Because Best refused to join their prison
gang, members of the Brotherhood of the Aryan Nation
(“Aryan Brotherhood”) physically beat Best and
threatened further violence. Because of the threats, Best was
placed in segregated housing for his safety from December
2011 to July 24, 2015. On July 6, 2015, Defendant King, a
caseworker with IDOC, informed Best that he would be returned
to the general population at Pendleton.
Best's objections that he still feared for his life
because members of the Aryan Brotherhood were still at
Pendleton, the State Defendants moved him back to the general
prison population. Less than a month later, on August 7,
2015, Best was attacked by members of the Aryan Brotherhood
as he left the infirmary in a walkway known as “death
alley, ” an area known for inmate-on-inmate violence.
Pendleton was understaffed, and inmate movement was not well
supervised. There were large river rocks in front of the
prison cell houses. Inmates used them as weapons in the
attack against Best. Best was badly beaten and sustained deep
head lacerations, bruises, and cuts on his back, shoulders,
arms, right hand, and wrist. Best's medical treatment
following the attack was poor.
filed the instant Section 1983 action, alleging that his
Eighth, Ninth, and Fourteenth Amendment rights were violated
because the Defendants failed to protect him, had a
deliberate indifference and reckless disregard toward his
health and safety, provided inadequate medical care, and
deprived him of the opportunity to serve his prison sentence
without constant fear of threats and violence.
State Defendants filed a Partial Motion to Dismiss, asserting
various immunity and other arguments. The Motion to Dismiss
was granted in part and denied in part. Count I was dismissed
as to the State of Indiana and IDOC because they are not
considered persons under Section 1983, and it was dismissed
as to Zatecky because the allegations in the Complaint
asserted liability based solely on his supervisory authority,
which is insufficient for a Section 1983 claim (Filing
No. 90 at 6-9). Count II brought against Zatecky and
IDOC was dismissed because Best had not sufficiently pled
facts to support an Eighth Amendment claim. Specifically, the
allegations fell short by not providing a minimal factual
basis regarding IDOC's and Zatecky's knowledge of and
involvement with Best's circumstances. Rather, the
allegations consisted of a generalized concern about prison
safety, overcrowding, and understaffing. Id. at
9-12. Count III-state law tort claims brought against
Zatecky, Peterson, Duncan, Safford, and Hurt-was dismissed on
the basis of immunity under the Indiana Tort Claims Act.
Id. at 12-14. Lastly, Count IV was dismissed as to
Zatecky and IDOC for various reasons, including that the
allegations in the Complaint did not provide a sufficient
factual basis to assert a constitutional claim for inadequate
medical care against Zatecky in his individual capacity.
Id. at 14-17.
the Court's Order on the Motion to Dismiss, the claims
remaining were Count I (a Section 1983 claim) against
Safford, Peterson, Duncan, Hurt, and King, and Count IV (a
claim for inadequate medical care) against Corizon and Dr.
Talbot. The ...