The opinion
FOR THE SOUTHERN D ISTRICT OF ILLINOIS
LAZEREK AUSTIN,
#K77091,
Plaintiff, Case No. 18-cv-01152-SPM
v.
WILLIAM SPILLER, et al.,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter is before the Court on a motion to reconsider summary judgment filed by
Plaintiff Austin pursuant to Federal Rule of Civil Procedure 60(b). (Doc. 199). Defendants did not
file a response in opposition to the motion. For the following reasons, the motion is granted in part
and denied in part.1
MOTION TO RECONSIDER SUMMARY JUDGMENT
On September 7, 2022, the Court granted in part and denied in part Defendants’ motion for
summary judgment. (Doc. 187). Plaintiff is now proceeding to trial on claims of retaliation against
Defendants Spiller, Gee, Leek, Reichert, and Verble (Counts 1 and 2). On January 23, 2023,
Plaintiff filed the current motion to reconsider. Plaintiff argues that the Court (1) failed to apply
the proper standard for granting summary judgment as to whether there was an implied agreement
sufficient to satisfy a claim of civil conspiracy; (2) failed to consider the genuine issue of disputed
facts in the record that there was evidence that Defendant Lashbrook knew of the Plaintiff’s
placement in restrictive housing in investigatory status; and (3) erred in finding that facts did not
1 The motion to supplement and Plaintiff’s additional arguments for reconsideration recently filed on June 16, 2023,
will be addressed in a separate order. (See Doc. 214).
Defendants Baldwin or Lashbrook.
Plaintiff states that he is seeking reconsideration pursuant to Federal Rule of Civil
Procedure 60(b), but he also references Rule 54(b) in the motion. Rule 60(b) provides relief from
“a final judgment or order in a narrow set of circumstances,” Knowlton v. City of Wauwatosa, No.
20-CV-1660, 2023 WL 2869846, at *1 (E.D. Wisc. Apr. 10, 2023) (citations omitted), while
Federal Rule of Civil Procedure 54(b) grants the Court the discretion to reconsider interlocutory
orders. In this case, there are still claims pending, and the Court has not issued a final order or
judgment. “As such, the summary judgment order was interlocutory in nature and is not a final
judgment or order under which Rule 60(b) applies.” Knowlton v. City of Wauwatosa, No. 20-CV-
1660, 2023 WL 2869846, at *1 (E.D. Wisc. Apr. 10, 2023) (citations omitted). The Court finds
that Rule 54(b) is the proper mechanism for reviewing Plaintiff’s motion.
Motions for reconsideration under Rule 54(b) generally serve “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) (citation omitted). “Manifest error occurs 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.’” Schmelzer
v. Animal Wellness Ctr. Of Monee, LLC, 2022 WL 3650675, at *1 (N.D. Ill. Aug. 1, 2022) (quoting
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)).
“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.” Caisse
Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). See also
Ahmed v. Ashcroft, 388 F. 3d 247, 249 (7th Cir. 2004).
I. Civil Conspiracy Claim (Count 1)
Plaintiff first argues that the Court erred in its application of law as to whether there was
Illinois case from 1995, Plaintiff argues that civil conspiracy has a heightened level of scrutiny
that the Court failed to apply. (Doc. 199, p. 5) (citing Mauntel v. Briscoe, No. 93 C 6579, 1995
WL 25298, at *7 (N.D. Ill. Jan 12, 1995)). Using this heightened standard, Plaintiff states that he
has presented enough evidence for a jury to conclude that Defendants reached an agreement to
violate his rights. He points out that he was interviewed “in concert, with several of [Defendants]
stating (in the presence of the others) that Plaintiff would experience consequences if he refused
to implicate himself or implicate others in the staff assault.” (Doc. 199, p. 5). Additional, Plaintiff
argues that according to the affidavits of other witnesses, these same investigators threatened other
incarcerated individuals to provide false statements implicating Plaintiff.
Other than this single district case, the Court is not aware of a “heightened” level of scrutiny
used to determine whether a civil conspiracy claim should survive summary judgment. As the
Seventh Circuit has simply explained “[t]o survive a motion for summary judgment, [Plaintiff]
needs to show evidence of an agreement among the conspirators to violate his rights.” Owens v.
Evans, 878 F. 3d 559, 565 (7th Cir. 2017). “[T]he alleged acts must be sufficient to raise the
inference of mutual understanding (i.e., the acts performed by the members of a conspiracy are
unlikely to have been undertaken without an agreement).” Amundsen v. Chi. Park Dist., 218 F.3d
712, 718 (7th Cir. 2000) (quotation marks and citation omitted). Upon further review, however,
the Court finds that Plaintiff has met his burden of putting forth facts, parallel conduct along with
various comments from Defendants, from which a jury could infer that there was an agreement
between Defendants to punish Plaintiff for not cooperating with the investigation. The summary
judgment order is vacated in part to the extent summary judgment was granted in favor of
Defendants Spiller, Gee, Leek, Reichert, and Verble as to the conspiracy claim in Count 1. The
Court denies Defendants’ motion for summary judgment as to Count 1 of civil conspiracy against
Spiller, Gee, Leek, Reichert, and Verble.
Plaintiff also argues that the Court erred in finding that there is no genuine issue of material
fact regarding whether Defendant Lashbrook knew of his placement in restrictive housing on
investigative status in retaliation for refusing to cooperate with prison officials investigating the
staff assault. He states that the Court did not address the fact that he had contact with Lashbrook
and informed her that he had been placed in restrictive housing on investigative status in retaliation
for refusing to cooperate with the investigation. (Doc. 199, p. 6) (citing Doc. 181, para. 88-89).
The Court, however, did address this conversation referenced by Plaintiff, which occurred
on May 26, 2017. (See Doc. 187, p. 10). By the time that Plaintiff spoke with Lashbrook on this
date, his housing status had changed. He was no longer being housed in restrictive housing on
investigative status as a result of the alleged conduct of Defendants Spiller, Gee, Leek, Reichert,
and Verble but in disciplinary segregation following a guilty finding by the Adjustment
Committee. For a failure to intervene claim, it is not enough that Lashbrook had knowledge of a
constitutional violation. She must also have a “realistic opportunity to prevent it.” Gill v.
Milwaukee, 850 F. 3d 335, 342 (7th Cir. 2017). As the Court previously found, because there is no
evidence that Lashbrook had knowledge of the retaliatory placement on investigative status until
after Plaintiff’s status had changed, she did not have an opportunity to intervene and stop the
retaliatory conduct of Spiller, Gee, Leek, Reichert, and Verble.
Plaintiff further argues that Defendants never raised an argument nor presented any facts
in the motion for summary judgment showing that Lashbrook did not have knowledge of Plaintiff’s
placement in restrictive housing. Thus, the Court erred in granting summary judgment on this
undisputed fact.
It is true that in the motion for summary judgment, Defendants only argued that because
2 The claim against Lashbrook in Count 1 is that she failed to remedy Plaintiff’s retaliatory placement in restrictive
housing on investigative status. (See Doc. 85, p. 4).
Lashbrook was entitled to judgment as a matter of law on the failure to intervene claim since there
was no underlying constitutional violation. (See Doc. 169). In his brief in opposition, Plaintiff
pointed out that it was undisputed that Lashbrook was aware of his situation. However, he further
argued that he had submitted evidence that she knew he “was being punished for an offense he had
no involvement in.” (Doc. 179, p. 9). In support of this argument, he cited to his affidavit
discussing the May 26 conversation. (See Doc. 181, p. 6). Additionally, the May 26 interaction is
the only communication mentioned between Plaintiff and Lashbrook provided in Plaintiff’s
statement of additional uncontroverted material facts. (See Doc. 181). Accordingly, Plaintiff has
had a “meaningful opportunity to come forward with all of [his] evidence,” regarding when and
how Lashbrook received knowledge of his placement on investigative status, and the evidence
presented does not demonstrate genuine an issue of material fact. See Sublett v. John Wiley & Sons,
Inc., 463 F. 3d 731, 736 (7th Cir. 2006).
That being said, to ensure that Plaintiff has had an adequate opportunity to brief the issue,
Plaintiff is granted leave to file a supplemental brief setting forth any additional argument and
evidence, not already addressed in the order on the motion for summary judgment (Doc. 187) or
this order, as to whether Lashbrook had a “realistic opportunity” to prevent Plaintiff’s retaliatory
placement and housing in restrictive housing on investigative status by Defendants Spiller, Gee,
Leek, Reighert, and Verble. If Plaintiff files such brief, Defendants shall have 7 days to respond.
See FED. R. CIV. P. 56(f).
III. Unconstitutional Strip Search Policy Against Lashbrook (Count 13)
Plaintiff states that while in restrictive housing he was subjected to excessive and
unnecessary strip searches in violation of the Fourth and Eighth Amendments. (Doc. 179, p. 13).
Despite spending his days alone in a cell, every time he left his cell, a strip search was conducted
in which he was required to touch his genitals and pull his buttocks apart so the officer could
of other prisoners and staff. (Doc. 181-1, p. 8). Plaintiff claims that Director Baldwin and Warden
Lashbrook created and/or condoned a strip search policy that was designed to punish, harass, and
humiliate segregation inmates, and not for any legitimate penological purpose. (See Doc. 7, p. 22).
The Court granted summary judgment in favor of Baldwin and Lashbook on this claim. The Court
did not address Defendants’ qualified immunity arguments and found that Plaintiff had failed to
point to any evidence that the strip searches were performed pursuant to a policy implemented by
Defendants. (Doc. 187, p. 19, 20).
Plaintiff’s argument that the Court erred in this finding is well taken. There is evidence in
the record that inmates in “administrative detention are subject to a strip search prior to leaving
their cells,” pursuant to an Illinois Department of Corrections policy. (See Docs. 74, 75). Upon
reconsideration, the Court will vacate in part its summary judgment order and grant summary
judgment only in part as to Count 13.
a. Fourth Amendment
In the motion for summary judgment, Defendants argue that they are entitled to the
protection of qualified immunity as to Plaintiff’s claim that the strip search policy violated the
Fourth Amendment. (Doc. 169, p. 20). “The doctrine of qualified immunity shields public officials
who perform discretionary duties from liability and protects those ‘who act in ways they
reasonably believe to be lawful.’” Lieberman v. Budz, No. 03 C 2009, 2009 WL 1437609, at *8
(N.D. Ill. May 20, 2009) (quoting Wheeler v. Lawson, 539 F. 3d 629, 639 (7th Cir. 2008). To
determine whether an official is entitled to qualified immunity, the Court must assess (1) whether
a constitutional right would have been violated on the facts alleged, and (2) whether the right
alleged to have been violated was clearly established. Surita v. Hyde, 665 F. 3d 860, 868 (7th Cir.
2011). “If either inquiry is answered in the negative, the defendant official’ is protected by
qualified immunity.” Koh v. Ustich, 933 F. 3d 836, 844 (7th Cir. 2019) (internal quotations and
Assessing the second prong of the inquiry, the Court finds that Lashbrook and Baldwin are
entitled to qualified immunity. In 2020, the Seventh Circuit recognized that prisoners maintain “a
reasonable expectation of privacy in their bodies with respect to visual strip searches,” like the
ones at issue in this case. See Henry v. Hulett, 969 F. 3d 769, 777 (7th Cir. 2020). Prior to the
Henry decision, however, and specifically in 2017 when the alleged events occurred, “it was not
clearly established law in this circuit that prisoners are entitled to the Fourth Amendment’s
protection in the context of a visual strip search.” Johnson v. Uherka, 2022 2528124, at *3 (W.D.
Wisc. July 7, 2022) (holding that the defendants were entitled to summary judgment on qualified
immunity grounds for any strip search claim under the Fourth Amendment) aff’d, No. 22-2589,
2023 WL 3581963 (7th Cir. May 22, 2023). Therefore, Baldwin and Lashbrook have qualified
immunity from suit based on the claim that the search policy violated Plaintiff’s Fourth
Amendment rights. Summary judgment is granted in part as to Count 13.
b. Eighth Amendment
Plaintiff is correct that Defendants did not seek summary judgment on Count 13 to the
extent the strip search policy violated the Eighth Amendment. Accordingly, summary judgment is
denied in part as to Count 13.
DISPOSITION
For the reasons stated above, the motion for reconsideration is GRANTED in part and
DENIED in part. (Doc. 199). The Order ruling on the motion for summary judgment is
VACATED in part. (Doc. 187). The Court DENIES summary judgment as to the Count 1 claim
of civil conspiracy against Defendants Spiller, Gee, Leek, Reichert, and Verble. The Court
DENIES in part and GRANTS in part summary judgment as to Count 13. Count 13 shall proceed
against Baldwin and Lashbrook for enforcing a strip search policy that violated the Eighth
Amendment. The Clerk of Court is DIRECTED to reinstate Defendants Lashbrook and Baldwin
This action will proceed to trial on the following counts:
Count 1: Defendants Spiller, Gee, Leek, Reichert, and Verble individually, and in
conspiracy with one another, violated the First Amendment by placing Austin in
administrative segregation in retaliation for refusing to cooperate with prison
officials’ investigation of a staff assault, or by failing to remedy the illegal
placement.
Count 2: Defendants Spiller retaliated against Austin in violation of the First
Amendment and violated his due process rights under the Fourteenth Amendment
by issuing him a false disciplinary report.
Count 13: Defendants Baldwin and Lashbrook subjected Austin to
unconstitutional strip searches when they enforced a policy of strip searching all
segregation inmates at Menard in violation of the Eighth Amendment.
By June 27, 2023, Plaintiff is granted leave to file a supplemental brief setting forth any
additional arguments and evidence, not already addressed in the order on the Motion for Summary
Judgment (Doc. 187) or this Order, as to whether Lashbrook had a “realistic opportunity” to
prevent Plaintiff’s retaliatory placement and housing in restrictive housing on investigative status
by Defendants Spiller, Gee, Leek, Reighert, and Verble. (Count 1). If Plaintiff files such brief,
Defendants shall have 7 days to respond. See FED. R. CIV. P. 56(f).
IT IS SO ORDERED.
DATED: June 20, 2023
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge