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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES WERDLOW # 186514,

Plaintiff, CASE NUMBER: 09-11009

HONORABLE VICTORIA A. ROBERTS

v.

PATRICIA CARUSO, et al.,

Defendants.

 /

ORDER DENYING MOTION FOR RECONSIDERATION

I. BACKGROUND

On March 18, 2009, Plaintiff James Werdlow filed a 42 U.S.C. § 1983 Complaint

against Patricia Caruso (the Director of the Michigan Department of Corrections

(“MDOC”)), and nurses Elizabth Levine and Deborah Beeker. On December 14, 2009,

the Court adopted the Report and Recommendation of Majistrate judge Mona K.

Majzoub and dismissed Werdlow’s Complaint against Caruso. On December 8, 2010,

the Court granted summary judgment to Defendants Levine and Beeker. The Court

noted that Plaintiff conceded Defendants were entitled to sovereign immunity in their

official capacities and held that they were entitled to qualified immunity in their personal

capacities.

This matter is before the Court on Werdlow’s Motion for Rehearing or

Reconsideration of the Court’s December 8, 2010 Order granting summary judgement

to Defendants. 

Werdlow’s motion is DENIED.

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II. STANDARD OF REVIEW

Courts generally will not grant motions for reconsideration “that merely present

the same issues ruled upon by the court, either expressly or by reasonable implication.” 

E.D. Mich. L.R. 7.1(g)(3). “The Court will grant a motion for reconsideration if the

moving party shows: (1) a ‘palpable defect,’ (2) that misled the Court and the parties,

and (3) that correcting the defect will result in a different disposition of the case.” Smith

v. Mount Pleasant Pub. Sch., 298 F.Supp.2d 636, 637 (E.D.Mich. 2003) (citing E.D.

Mich. L.R. 7.1(g)(3)). A palpable defect is an error “which is obvious, clear,

unmistakable, manifest, or plain.” Id.

III. ANALYSIS

In his motion, Werdlow: (1) advances old arguments that were presented to the

court in response to Defendants’ motions for reconsideration and (2) presents novel

arguments based on “relevant existing case law he has recently discovered.” (Doc. #

52; Motion for Rehearing or Reconsideration at 1). A motion for reconsideration,

however, is not the proper vehicle to do either. Wesco Distrib., Inc. v. Hartford Fire Ins.

Co., No. 09-13014, 2010 WL 4822897, at *1 (“A motion for reconsideratoin [ ] ‘is not

properly used as a vehicle to re-hash old arguments or to advance positions that could

have been argued earlier but were not.’”) (quoting Smith, 298 F.Supp.2d at 637).

Werdlow continues to argue Defendants executed a MDOC “custom” by

characterizing his medical complaints as “vague” and writing “derogatory” information in

his patient file. (Doc. # 52; Motion for Rehearing or Reconsideration). He now says their

notations are acts in furtherance of the custom of discouraging the administration of

necessary life saving health care. (Id. at 3-4). He says that he erred by conceding

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Defendants are entitled to sovereign immunity and makes a number of new arguments

and cites cases that he failed to cite in other pleadings. (Id. at 1) These new

arguments are improper in a motion for reconsideration. Id.; Hamilton v. Gansheimer,

536 F.Supp.2d 825, 842 (N.D.Ohio 2008) (“Courts should not reconsider prior decisions

where the motion for reconsideration...proffers new arguments that could, with due

diligence, have been discovered and offered during the initial consideration of the

issue.”).

Moreover, The Court has addressed variations of these arguments at various

phases of the proceedings. In her Report and Recommendation on former Defendant

Caruso’s motion for dismissal or summary judgment, Magistrate Judge Majzoub held

that Plaintiff was not entitled to injunctive relief arising from Caruso’s conduct in her

official capacity. (Doc. #15; Report and Recommendation). Plaintiff alleged he was

entitled to relief because the manner in which Beeker and Levine treated his medical

condition constituted a custom practiced by the nurses under Caruso. The magistrate

held because Defendant was transferred from Saginaw Regional Facility (“SRF”) to

Boyer Road Correctional Facility, his claim was moot. (Id. at 5). She said:

Any claim for prospective injunctive relief would therefore pertain to Boyer

Road Correctional Facility. Plaintiff does not allege in his pleadings that

he is at risk of irreparable harm from any policy or practice implemented at

Boyer Road Correctional Facility. The only policy or custom Plaintiff refers

to in his pleadings relates to the alleged policy implemented by the

Defendant nurses at SRF.

(Id.) Although the magistrate decided the matter in relation to Caruso’s motion, the

same reasoning would apply to Werdlow’s official capacity suit against Beeker and

Levine. In adopting the magistrate’s recommendation, the Court noted that Plaintiff

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conceded that his claim for injunctive relief was moot in light of his move from SRF to

Boyer Road Correctional Facility. (Doc. # 19; Order at 2)

Then, in Werdlow’s Supplemental Brief in response to Beeker’s motion for

summary judgment, Plaintiff again argued that Defendants’ conduct constituted a

“custom” proscribed by the Eighth Amendment. (Doc. #48; Supplemental Pleading at 4,

¶ 17). The Court noted that Werdlow did not identify a formal policy or custom and that,

for purposes of establishing official capacity liability, “[w]here there is no identification of

a formal policy or custom, approved by the appropriate decisionmaker, a plaintiff must

present sufficient evidence that the defendant implemented a custom that is ‘so

permanent and well settled as to constitute a custom or usage with the force of law’ to

establish liability as a result of a custom that caused a constitutional deprivation.” (Doc.

# 50; Order at 16 (citing Doe v. Claiborne Cty., Tenn., 103 F.3d 495, 507 (6th Cir.

1996)). 

Werdlow did not do so. Instead, he presented evidence that Beeker used the

term “vague” on only one Patient Report. He also identified notations in his patient files

which he characterized as “derogatory.” The Court found that the information contained

in Werdlow’s medical files was not, in fact, derogatory, and instead evidenced

Defendants’ lack of awareness of the severity of Plaintiff’s medical condition. The

nurses simply noted Werdlow’s behavior and symptoms. This is not sufficient evidence

of a permanent and well-settled custom, with the force of law, of discouraging the

administration of needed medical treatment. See Doe, 103 F.3d at 509 (A plaintiff must

advance sufficient evidence to create a genuine issue of material fact as to the

existence of a custom or policy before the question of “deliberate indifference” can

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reach the jury). Thus, Werdlow could not make the requisite showing that Defendants 

“knowingly [executed] a policy of minimizing medical care and withholding necessary

care,” to establish official liability based on execution of a policy or widespread custom. 

Young v. Martin, No. 02-1036, 51 Fed.Appx. 509, 2002 WL 31379888, at * 5 (6th Cir.

2002). To the extent Werdlow presents new evidence and case law, that was available

to him when the Court considered Defendants’ motions for summary judgment, of a

custom or policy of MDOC to downplay and inadequately address the medical needs of

prisoners at various institutions, the Court will not grant his motion based on these

arguments, raised for the first time on a request for rehearing.

Even if Werdlow’s claims were enough to establish execution of a custom for

purposes of personal liability rather than official liability, Werdlow would still need to

overcome Defendants’ qualified immunity defense. As the Court found, even if

Defendants’ conduct could be viewed as executing a custom which led to the

deprivation of a constitutional right, it was not clearly established that this conduct was

unlawful in the situation they confronted. See Brousseau v. Haugen, 543 U.S. 194, 199

(2004).

IV. CONCLUSION

Having examined the arguments and case law included in Werdlow’s motion, the

Court concludes Werdlow fails to establish a palpable defect, the correction of which will

result in a different disposition of the case. His motion for reconsideration is DENIED.

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IT IS ORDERED.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: January 7, 2011

The undersigned certifies that a copy of this

document was served on the attorneys of

record and James Werdlow by electronic

means or U.S. Mail on January 7, 2011.

s/Linda Vertriest 

Deputy Clerk

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