Gakuba v. Henderson

PETER GAKUBA,

#M52946,

Plaintiff,

v. Case No. 19-cv-01273-NJR

LARRY HENDERSON,

GRETA SMITH,

PENNY GEORGE,

DR. BIRCH,

CHRIS GOTWAY, and

TERRY GRISSOM,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Peter Gakuba, an inmate of the Illinois Department of Corrections who is

currently incarcerated at Vienna Correctional Center (“Vienna”), brings this civil rights

action pursuant to 42 U.S.C. § 1983. Following a preliminary review of the First Amended

Complaint pursuant to 28 U.S.C. § 1915A, Gakuba is proceeding with claims related to

his diet and seafood allergy in violation of the Eighth Amendment and a claim for

retaliation in violation of the First Amendment. (Doc. 17). On March 11, 2020, the Court

issued an order denying the following motions filed by Gakuba: Motions for Equitable

Relief (Docs. 5, 14, 46), Motion for Court Ordered Prison Transfer (Doc. 23), Motion to

Compel Discovery (Doc. 41), Motion for Summary Judgment (Doc. 47), and Motion for

Judgment on the Pleadings (Doc. 48). On March 24, 2020, Gakuba simultaneously filed

Motion for Reconsideration (Doc. 52) and a Notice of Appeal (Doc. 54) of the Court’s

Order. A few weeks later, he filed a Motion for Leave to Appeal in forma pauperis (“IFP”)

currently before the Court for consideration, along with the affidavit demonstrating his

inability to pay, filed as a separate motion (Doc. 62).

MOTION FOR RECONSIDERATION

The Federal Rules of Civil Procedure do not explicitly contemplate motions to

reconsider. Nevertheless, the Seventh Circuit has approved of district courts construing

motions pursuant to the standards set forth in Federal Rule of Civil Procedure 59(e) or

60(b) if it appears that a party is requesting relief available under those Rules. United

States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). “[W]hether a motion filed within [28]

days of the entry of judgment should be analyzed under Rule 59(e) or Rule 60(b) depends

on the substance of the motion, not on the timing or label affixed to it.” Obriecht v.

Raemisch, 517 F.3d 489, 493 (7th Cir. 2008).

Rule 59(e) allows a court to alter or amend a judgment in order to correct manifest

errors of law or fact or to address newly discovered evidence. Obriecht, 517 F.3d at 494.

“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) (internal citations omitted).

Rule 60(b) sets forth a more exacting standard than Rule 59(e), although it permits

relief from a judgment for a number of reasons, including mistake or “any other reason

justifying relief from the operation of judgment.” FED. R. CIV. P. 60(b). Relief under Rule

60(b) is an extraordinary remedy and is only granted in exceptional circumstances.

McCormick v. City of Chi., 230 F.3d 319, 327 (7th Cir. 2000).

As a preliminary matter, the Court must address its jurisdiction to decide the

Ordinarily, a notice of appeal “divests the district court of its control over those aspects

of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56,

58 (1982); accord May v. Sheahan, 226 F.3d 876, 879 (7th Cir. 2000). Where a party files a

timely notice of appeal and a timely Rule 59(e) motion or a Rule 60(b) motion filed no

later than twenty-eight days after the judgment is entered, however, the notice becomes

effective only after the order disposing of the Rule 59(e) or Rule 60(b) motion. FED. R. APP.

P. 4(a)(4)(B)(i); see Katerinos v. United States Dep’t of Treasury, 368 F.3d 733, 737 (7th Cir.

2004). Consequently, the Court finds that it has jurisdiction to decide the Motion to

Reconsider despite Gakuba’s Notice of Appeal.

In the motion, Gakuba asks the Court to reconsider the denial of his Motion for

Summary Judgment and Motions for Equitable Relief. In support of his motion, he argues

that the undersigned “rested on martial misrepresentations and omissions in a wanton

and reckless disregard for the truth.” (Doc. 52, p. 1). He first essentially argues that the

Court made an error by denying the Motion for Summary Judgment because summary

judgment motions may be filed at any time. While a motion for summary judgment may

be filed at any time, it is not an abuse of discretion for a Court to conclude that the motion

is premature when filed before defendants have answered, and the Court will not amend

its ruling. See Stanley v. Hollingsworth, 307 F. App’x 6, 10 (7th Cir. 2009); FED. R. CIV. P.

56(b).

In furtherance of his claims that the Court should reconsider his requests for

equitable relief, Gakuba realleges facts and arguments already stated in his previous

motions for equitable relief and the First Amended Complaint. Specifically, he argues

Correctional Center, prior to being transferred to Vienna, he was provided a special diet,

and his seafood allergy was respected; (2) Defendant Henderson told him that Vienna

does not respect prisoner food allergies per an unspecified administrative directive;

(3) Defendant Dr. Birch is an osteopath, while Gakuba’s personal doctor is a board-

certified cardiologist; and (4) his special meals are being denied because of the added

costs and labor. (Doc. 55, p. 9-10). He claims that it was incorrect for the undersigned to

conclude that his seafood allergy would be respected even if it was documented or

diagnosed by a physician, as Vienna does not respect any prisoners’ food allergies. (Id.).

Although he disagrees with the Court’s ruling, Gakuba has not shown that the

denial of his requests for equitable relief was done in error or was a mistake in some way.

In order to obtain injunctive relief while a lawsuit is pending, a plaintiff must meet three

requirements: a reasonable likelihood of success on the merits; no adequate remedy at

law; and irreparable harm absent the injunction. See Planned Parenthood v. Comm’r of Ind.

State Dep’t Health, 699 F.3d 962, 972 (7th Cir. 2012). Each requirement must be satisfied to

obtain relief. The Court remains convinced of the determination that, based on the

pleadings, Gakuba did not demonstrate a likelihood of success on the merits or

irreparable harm. Gakuba’s Eighth Amendment claims of deliberate indifference to a

serious medical need and cruel and unusual punishment against Defendants for

continuing to provide him seafood meals and that he will suffer irreparable harm are

premised on the alleged fact that he has a seafood allergy. Other than stating he has an

allergy, Gakuba has not offered any kind of medical documentation to corroborate his

allegations, he admits that he denied taking an allergy test when offered by Dr. Birch,

need or the medical consequences of consuming seafood. Consequently, the Court still

finds that it remains unclear whether he has a seafood allergy and whether such allergy

could be considered an objectively serious medical condition. He has not made a “clear

showing” that he is entitled to relief as is required for a preliminary injunction. Valencia

v. City of Springfield, 883 F.3d 959, 965 (7th Cir. 2018) (a preliminary injunction should not

be ordered “except in a case clearly demanding it.”).

As Gakuba has not established that the Court made an error of law or fact or

presented an exceptional circumstance that warrants vacation or amendment of the

Court’s ruling, the motion is denied.

MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

A federal court may permit a party to proceed on appeal without full pre-payment

of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C.

§ 1915(a)(1) & (3); FED. R. APP. P. 24(a)(3)(A). See also Walker v. O’Brien, 216 F.3d 626, 630-

31 (7th Cir. 2009). An appeal is taken in good faith if it seeks review of an issue that is not

clearly frivolous, meaning that a reasonable person could suppose it to have at least some

legal merit. Walker, 216 F.3d at 632 (citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir.

2000)). The motion to proceed IFP must be supported by an affidavit that shows the

party’s inability to pay or to give security for fees and costs, claims an entitlement to

redress, and states the issues that the party intends to present on appeal. See FED. R. APP.

P. 24(a)(1).

Here, a review of Gakuba’s affidavit and financial statement confirms he is

indigent. (Doc. 62). For the reasons that follow, however, the Court grants in part and

To the extent that the motion is seeking leave to appeal IFP the Court’s ruling

regarding the Motion to Compel Discovery, the Motion for Summary Judgment, and the

Motion for Judgment on the Pleadings, the Court finds that because Gakuba des not

provide any basis for his appeal, the appeal is not taken in good faith. A motion for leave

to proceed IFP must state “the issues that the party intends to present on appeal.” FED.

R. APP. P 24(a)(1)(C). Gakuba’s Motion for Leave to Appeal IFP only discusses the

Court’s denial of his Motions for Equitable Relief and does not contain the issues he

intends to present on appeal regarding the denial of his other motions. Furthermore, the

Notice of Appeal (Doc. 54) also does not describe a basis for his appeal and simply states

that he is appealing the “order denying equitable relief (ECF 51) and all related orders

(denial court recruited counsel; denial discovery of any kind to pro se indigent

prisoner)[.]”

Alternatively, the Court also finds that no reasonable person could suppose that

his claims have merit, and thus, are frivolous. See Lee v. Clinton, 209 F. 3d 1025, 1026 (7th

Cir. 2000). Gakuba filed all three motions prior to any Defendants even answering the

First Amended Complaint. As previously mentioned, it is not an abuse of discretion for

a Court to conclude that the motion is premature when filed before defendants have

answered. See Stanley, 307 F. App’x at 10; FED. R. CIV. P. 56(b). Furthermore, a motion for

judgment on the pleadings is not appropriate until after the pleadings are closed. FED.

R. CIV. P. 12(C). The pleadings did not close until April 27, 2020, when all of the

defendants had filed responsive pleadings, and thus, the motion for judgment on the

pleadings was premature. Finally, “this Court enjoys broad discretion in directing the

(S.D. Ill. 2018). At the time Gakuba filed his Motion to Compel Discovery, not only had

a discovery schedule not yet been entered in this case, but Gakuba also did not certify

that he in good faith had conferred with Defendants to obtain discovery responses

without court action prior to filing his motion. See FED. R. CIV. P. 37. Because the appeal

is not taken in good faith and is frivolous, the Court denies Gakuba’s Motion for Leave

to Appeal IFP the Court’s order to the extent that it denied the Motion to Compel

Discovery, the Motion for Summary Judgment, and the Motion for Judgment on the

Pleadings.

The Court finds that Gakuba’s request to proceed IFP on appeal of the Court’s

denial of his motions for equitable relief, including his request to be transferred to a

different facility, however, appear to be taken in good faith. First, Gakuba may appeal an

interlocutory order denying a motion for preliminary injunction under 28 U.S.C.

§ 1292(a)(1). Second, his claims in support of his request for preliminary injunctive relief

are neither malicious nor frivolous.

DISPOSITION

For the reasons provided above, Gakuba’s Motion for Reconsideration (Doc. 52) is

DENIED. The Motion for Leave to Appeal in forma pauperis (Docs. 55 and 62) is

GRANTED in part and DENIED in part. Gakuba may proceed IFP on his appeal of the

Court’s denial of his Motions for Equitable Relief (Docs. 5, 14, 23, and 46). The Order

assessing an initial partial filing fee will be entered separately.

If Gakuba wishes to contest the Court’s ruling that his appeal is not in good faith,

he has thirty days from the date of this Order to reapply to the Seventh Circuit Court of

JAPPealo LOL IAVE LU PLOCEEUM bi JUTIK Puuperio Ull dpVeal Ul UM WUUTL oS Ullal Ul

remaining motions — Motion to Compel Discovery, Motion for Summary Judgment, and

Motion for Judgment on the Pleadings. FED. R. App. P. 24(a)(5).

IT IS SO ORDERED.

DATED: April 27, 2020 Tq g

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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