United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on the motions of pro se
plaintiff Rubin Rurie Weeks. After initial review of
plaintiff s complaint in this matter, the Court found it
subject to dismissal under the three strikes rule, 28 U.S.C.
§ 1915(g), and as duplicative of another currently
pending complaint that plaintiff has before this Court. Now,
plaintiff seeks to alter or amend the Court's dismissal
under Federal Rule of Civil Procedure 59 and/or to correct
the judgment under Rule 60. Plaintiff has also filed a motion
to disqualify the Honorable Stephen N. Limbaugh, Jr. from
this matter. Plaintiffs request for disqualification of Judge
Limbaugh Jr. will be denied, as he is not the judge presiding
over this case. However, as requested by plaintiff in his
motion to amend or correct, the dismissal of this matter will
be reconsidered by a different district court judge.
Nevertheless, for the reasons discussed below, the motion to
amend or correct the judgment will be denied.
February 13, 2019, plaintiff filed the instant complaint in
this Court, seeking relief pursuant to 42 U.S.C. § 1983;
the Americans with Disabilities Act, 42 U.S.C. §§
12101 et seq. ("ADA"); and state law.
Plaintiff named as defendants: St. Mary's Hospital; two
doctors employed at the Hospital (Jeff Lehmen and Kevin
Huffman); the risk manager of the Hospital (Julie Henley);
two Hospital security officers (Unknown Flowers and Unknown
Jennings); the Director of the Missouri Department of
Corrections ("MDOC") (Anne Precythe); the prison
health care (Corizon) Regional Medical Director (Dr. Thomas
Bredeman); and multiple John and "Jone" Doe
defendants. Plaintiff brought suit against defendants in both
their individual and official capacities, except Precythe who
was named in her official capacity only.
plaintiff s claims arose from events that followed a spine
surgery plaintiff had at St. Mary's Hospital on February
14, 2017, while he was incarcerated with the MDOC. In
summary, plaintiff claims that MDOC correctional officers
assaulted and used excessive force on him when they
transported him from the hospital back to the prison after
the surgery. According to plaintiff, the Hospital and its
defendant employees (Drs. Lehmen and Huffman, risk manager
Henley, and security officers Flowers and Jennings) knew
about the abuse and did nothing as part of a conspiracy with
Precythe and Bredeman to deprive him of adequate medical care
and to cover up the abuse. Plaintiff also alleged that the
Hospital, risk manager Henley, and security officers Flowers
and Jennings failed to protect him and violated his right to
equal protection. He argued that the failure to protect him,
as a disabled person, violated the ADA. Once back at the
prison, plaintiff alleged that he was denied timely follow-up
medical care and treatment following the spine surgery, in
violation of both the Eighth Amendment and the ADA. Finally,
plaintiff asserted a state law claim of negligence. He sought
injunctive and monetary relief.
two years before the filing of this suit, on January 27,
2017, plaintiff filed a complaint in this Court against MDOC
and Corizon defendants. See Weeks v. Birch, No.
1:17-CV-22-AGF (E.D. Mo. Jan. 27, 2017) (hereafter
'Weeks F). The Court appointed counsel for
plaintiff in that matter and plaintiffs counsel filed the
currently pending Second Amended Complaint on April 11, 2018.
Weeks I, ECF No. 98. In the second amended
complaint, plaintiff names twenty-three defendants, including
two of the same defendants named in this matter (Precythe and
Bredeman). There, as here, three of plaintiff s claims stem
from events that occurred following his spine surgery in
February 2017, including claims of "Use of Excessive
Force During Transportation from Hospital to JCCC" and
"Refusal to Provide Timely Follow up Treatment After
Surgery." In summary, plaintiff alleges in Weeks
I that defendant MDOC correctional officers used
excessive force on him when transporting him from the
hospital back to the prison following his surgery and that
Corizon prison medical staff defendants failed to provide him
timely follow-up medical treatment after his spinal surgery.
Finally, he includes a state law negligence claim against
prison medical defendants. In Weeks I, plaintiff
also seeks injunctive and monetary relief. As of the date of
this Order, Weeks I remains pending as to twenty-two
of the defendants. It is currently scheduled for trial in
initial review of plaintiffs complaint in this matter, the
Court found it subject to dismissal under the Three Strikes
Rule, 28 U.S.C. § 1915(g), and also subject to dismissal
as being duplicative of Weeks I. ECF Nos. 8 & 9.
Although this case was randomly assigned to U.S. Magistrate
Judge Nannette A. Baker upon case opening under Local Rule
2.08, the dismissal order was signed by U.S. District Judge
Stephen N. Limbaugh, Jr. because full consent of the parties
had not been received. See 28 U.S.C. § 636.
However, on June 4, 2019, Judge Baker recused herself from
this matter and the case was reassigned to U.S. District
Court Judge Ronnie L. White. ECF Nos. 15 & 16.
to Disqualify the Honorable Stephen N. Limbaugh, Jr. (ECF No.
argues that Judge Limbaugh's review of this case is
unfair because Judge Limbaugh presided over plaintiffs
criminal conviction in state court which resulted in
plaintiffs current incarceration. See State v.
Weeks, No. 32R059101115-01 (32nd Jud. Cir. Feb. 13,
1992). Plaintiff alleges that Judge Limbaugh "was
involved in the forced plea negotiations" in his
criminal case and that Judge Limbaugh is bias and prejudiced
against him. ECF No. 11 at 1. Plaintiff asks that his case be
"referred to another district judge for review under
section 1915e." Id. at 7. Plaintiff elaborates
on these recusal and disqualification arguments in his motion
to alter or amend, but also in a separately filed
"Motion to Disqualify." ECF No. 13.
review of the Court's docket reveals that Judge Limbaugh
did recuse himself from plaintiffs currently pending case,
Weeks I, on October 20, 2017. However, recusal or
disqualification of Judge Limbaugh in this matter is
unnecessary, as he is not the assigned judge to this case.
Therefore, to the extent plaintiff seeks an order of
disqualification of Judge Limbaugh in this matter, such
request is denied. However, in consideration of Judge
Limbaugh's previous recusal in Weeks I and. the
recent reassignment of this matter by the Court, a different
district court judge will consider plaintiffs motion to alter
or amend the judgment.
to Alter or Amend the Judgment (ECF No. 11)
seeks reconsideration of the Court's dismissal order
under both Federal Rules of Civil Procedure 59 and 60(b).
After reviewing the dismissal order signed by the Honorable
Stephen N. Limbaugh, Jr. and the arguments made by plaintiff
in his motion to alter or amend, the Court finds that
plaintiffs motion should be denied.
Rule 59(e), a court may alter or amend a judgment upon a
motion filed no later than 28 days after entry of the
judgment. Fed.R.Civ.P. 59(e). Rule 59(e) gives the Court
power to rectify its own mistakes in the period immediately
following the entry of judgment. White v. N.H. Dep't
of Emp'tSec,455 U.S. 445, 450 (1982).
Rule 59(e) motions are limited, however, to correcting
"manifest errors of law or fact or to present newly