Dubose v. Jiminez

Background

Tyrek Dubose, proceeding without a lawyer and without paying the filing fee, moved for reconsideration of the court’s August 15, 2023 opinion and order. That earlier order had granted in part and denied in part the defendants’ motion to dismiss. It dismissed several claims, including claims under the First, Eighth, and Fourteenth Amendments and a conspiracy claim under 42 U.S.C. § 1983.

Dubose asked the court to “bring back all recently dismissed defendants.” A reconsideration motion may be granted when there has been a change in controlling law, new evidence is available, or the court needs to correct a clear error or prevent a serious injustice. The court explained that such motions are narrowly limited and may not be used to repeat arguments or present new arguments that could have been made earlier.

Analysis

The court denied reconsideration of the First Amendment retaliation claim against Serringer. Dubose argued that Serringer learned about an email and later threatened him. The court determined that Dubose’s complaint alleged the threat occurred before the email was sent and did not allege that Serringer later took retaliatory action.

The court also denied reconsideration of the Eighth Amendment medical-indifference claim against Nurse Pitt. It found that Dubose was attempting to revise or contradict his original allegations. The complaint stated that Pitt said she would obtain ibuprofen, and an attached letter stated that Dubose had received two “motrins.”

The court denied reconsideration of the First Amendment denial-of-access-to-courts claim involving Kitson, Drexler, and Walden. Because Dubose had pursued this lawsuit, the court found that he had not alleged an actual injury in this case from their purported actions.

The court granted reconsideration concerning Hearing Officer Mayes. The court had previously found it unclear whether Dubose’s placement in the Special Housing Unit resulted from the disciplinary hearing before Mayes. After reviewing an exhibit attached to the complaint, the court found that the exhibit indicated Mayes imposed 200 days of Special Housing Unit confinement after a May 11, 2021 hearing. The court therefore concluded that Dubose plausibly alleged a protected liberty interest supporting a Fourteenth Amendment procedural due process claim against Mayes.

The court also denied reconsideration concerning the other defendants. It specifically stated that the prior dismissal of the due process claims against Venettozzi, Rodriguez, and Burnett was proper because reviewing or affirming disciplinary-hearing outcomes did not establish their personal involvement.

Ruling

Judge Briccetti ordered that the motion for reconsideration was GRANTED IN PART and DENIED IN PART. The Fourteenth Amendment procedural due process claim was reinstated against Mayes only and may proceed against him. The Clerk was directed to reinstate Mayes as a defendant and terminate the motion. The court also certified that any appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal.