The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TED KNOX )
)
Plaintiff, )
)
vs. ) Case No. 17-CV-572-DWD
)
WARDEN BUTLER, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
DUGAN, District Judge
Plaintiff Ted Knox, an inmate in the Illinois Department of Corrections currently
incarcerated at Menard Correctional Center (“Menard”), brought this action under 42
U.S.C. § 1983 alleging violations of his constitutional rights. The case was dismissed on
summary judgment (Doc. 83). Plaintiff has now filed a Motion to Alter or Amend the
Judgment (Doc. 87). The Motion is DENIED.
Plaintiff’s Motion was filed within 28 days of the entry of judgment and will be
considered under Federal Rule of Civil Procedure 59(e). Banks v. Chicago Board of
Education, 750 F.3d 663, 666 (7th Cir. 2014). Amendment of the judgment under Rule 59(e)
is “proper only when the movant presents newly discovered evidence that was not
available at the time of trial or if the movant points to evidence in the record that clearly
establishes a manifest error of law or fact.” Stragapede v. City of Evanston, 865 F.3d 861,
868 (7th Cir. 2017). It is an “extraordinary remed[y] reserved for the exceptional case.”
Childress v. Walker, 787 F.3d 433, 442 (7th Cir. 2015). A Rule 59(e) motion “does not
provide a vehicle for a party to undo its own procedural failures, and it certainly does
not allow a party to introduce new evidence or advance arguments that could and should
have been presented to the district court prior to the judgment.” United States v. Resnick,
594 F.3d 562, 568 (7th Cir. 2010). Rule 59(e) may also not be used to “rehash previously
rejected arguments.” Vesely v. Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014).
Plaintiff appears to allege three errors of law or fact in the Order granting
summary judgment, none of which are either clearly established or material.
First, he suggests that although the pamphlets on the dangers of smoking from the
CDC and American Cancer Society may be inadmissible hearsay under Federal Rules of
Evidence 801 and 802, the contents thereof created a genuine issue of material fact.
Plaintiff is correct that the Federal Rules of Civil Procedure “allow parties to oppose
summary judgment with materials that would be inadmissible at trial so long as facts
therein could later be presented in an admissible form.” Olson v. Morgan, 750 F.3d 708,
714 (7th Cir. 2014). However, Plaintiff cannot offer the contents of those pamphlets in an
admissible form. The contents of the pamphlets are essentially expert testimony under
Federal Rules of Evidence 701 and 702. As Plaintiff did not offer any expert witness who
would be competent to testify on the underlying information that forms the bases of the
pamphlets, it would also not be admissible at trial. The Seventh Circuit has recognized
that expert testimony is necessary in such cases. See Henderson v. Sheahan, 196 F.3d 839,
852 (7th Cir. 1999)
Plaintiff also asserts that the Smoke Free Illinois Act (codified at 410 Ill. Comp. Stat.
82/1 et seq.) is admissible evidence precluding summary judgment. Specifically, Plaintiff
points to the preliminary recitals in the Act. In those recitals, the Illinois legislature found
that “tobacco smoke is a harmful and dangerous carcinogen to human beings and a
hazard to public health” and that the United States Surgeon General “has determined
that there is no risk-free level of exposure to secondhand smoke[.]” 410 Ill. Comp. Stat.
82/5. To defeat a motion for summary judgment on a monetary-damages claim for
increased risk of future harm due to ETS exposure, controlling Seventh Circuit precedent
requires a plaintiff to “proffer competent and reliable expert medical testimony that there
was a reasonable medical certainty that he himself faces some defined level of increased
risk of developing a serious medical condition and that this increased risk was
proximately caused by his exposure to second-hand smoke[.]”). Henderson, 196 F.3d at
852. The legislative pronouncements of the General Assembly as to the general
harmfulness of second-hand tobacco exposure, even if accepted as fact, are not sufficient
to meet the standard articulated.1
Finally, Plaintiff argues that the Court should have allowed him to “relitigate” his
summary judgment response after denying his Rule 56(c) motion. The Motion related to
an aerial photograph purporting to show the distance between an outdoor area where
smoking occurred and the cellhouse where Plaintiff was housed, which was not provided
to Plaintiff. The Court denied the Motion because the distance (and therefore the
photograph) was immaterial to the Defendants’ entitlement to summary judgment.
1 Plaintiff also suggests that the General Assembly’s recitations are evidence that the risks associated with
involuntary exposure to any ETS are “not one[s] that today's society chooses to tolerate.” Helling v.
McKinney, 509 U.S. 25, 36 (1993). That may be the case, but the Seventh Circuit’s test for future monetary
claims requires more.
Giving Plaintiff an opportunity to amend his response on a non-dispositive issue would
have been pointless, and so failure to do so is not a manifest error of law or fact.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Alter or Amend Judgment (Doc.
87) is DENIED.
IT IS SO ORDERED. “J
DATED: January 11, 2021 Min L, i J
DAVIDW.DUGAN
United States District Judge
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