UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ESTATE OF MIKAL R. GAITHER, by and through Pearl Gaither, Personal Representative,
Plaintiff, Civil Action No. 03-01458 (CKK) v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION (February 28, 2011)
Plaintiff Pearl Gaither (“Plaintiff”) commenced this action on July 1, 2003, as the
personal representative of the estate of Mikal R. Gaither. Named as defendants are the District of
Columbia, Odie Washington, Marvin L. Brown, Dennis Harrison, Zerline Brooks, Gounod
Toppin, and Joseph White (collectively, “Defendants”). Presently before the Court is
Defendants’ [195] Motion for Reconsideration of the Court’s September 8, 2009 Order Granting
in Part and Denying in Part Their Motion for Judgment on the Pleadings and/or for Summary
Judgment (“Motion for Reconsideration”). Although styled as such, Defendants’ motion plainly
is not one for reconsideration, as it either raises arguments that should have been raised in their
underlying motion for summary judgment but were not, or merely recycles the same arguments
already pressed and rejected. Accordingly, based on the parties’ submissions, the attachments
thereto, the relevant authorities, and the record as a whole, the Court shall DENY Defendants’ [195] Motion for Reconsideration.1
I. BACKGROUND
The Court assumes familiarity with its prior opinions in this action, which set forth in
detail the extensive history of this case, and shall therefore only address the factual and
procedural background necessary to address the discrete issues currently before the Court.
Plaintiff first commenced this action on July 1, 2003, as the personal representative of the
estate of Mikal R. Gaither (“Gaither”), who was fatally stabbed on December 14, 2002 while
incarcerated at the District of Columbia’s Central Detention Facility (the “Jail”). See Compl.,
Docket No. [1]. In her Second Amended Complaint,2 Plaintiff asserts the following three causes
of action:
• First Cause of Action (Section 1983). For her first cause of action, based on 42 U.S.C. § 1983 (“Section 1983”), Plaintiff alleges that Defendants deliberately or recklessly subjected Gaither to an unreasonable risk of violent injury as a result of the conditions at the Jail, in violation of Gaither’s Fifth Amendment rights. Second Am. Compl., Docket No. [34], ¶¶ 59-71.
• Second Cause of Action (Negligence/Survival). For her second cause of action, Plaintiff alleges that Defendants were under a statutory and common law duty to provide for the safekeeping, care, and protection of detainees, and their breach of that
1 While the Court renders its decision today on the record as a whole, its consideration has focused on the following documents, listed in chronological order of their filing: Defs.’ Mot. for Recons. of the Court’s September 8, 2009 Order Granting in Part and Denying in Part Their Mot. for J. on the Pleadings and/or for Summ. J. (“Defs.’ Mem.”), Docket No. [195]; Pl.’s Opp’n to Defs.’ Mot. for Recons. of the Court’s Denial in Part of Defs.’ Mot. for Summ. J., Docket No. [203-1]; Defs.’ Reply Mem. in Resp. to Pl.’s Opp’n to Defs.’ Mot. for Recons. of the Court’s September 8, 2009 Order Granting in Part and Denying in Part Their Mot. for J. on the Pleadings and/or for Summ. J. (“Defs.’ Reply”), Docket No. [206]. 2 On February 26, 2011, the Court granted Plaintiff leave to file a Third Amended Complaint, see Order (Feb. 26, 2011), Docket No. [220]; Mem. Op. (Feb. 26, 2011), Docket No. [221], but the Second Amended Complaint was the operative version at all times relevant to the pending motion.
2 duty resulted in Gaither’s death. Id. ¶¶ 72-78.
• Third Cause of Action (Wrongful Death). For her third cause of action, Plaintiff contends that Defendants’ negligence proximately caused Plaintiff, as Gaither’s next of kin, to suffer the loss of, inter alia, Gaither’s services, companionship, and financial support. Id. ¶¶ 79-81.
This action was stayed for approximately three years pending resolution of a criminal
investigation into the circumstances surrounding Gaither’s death, after which an extended and
often contentious period of discovery ensued. At the conclusion of discovery, the parties filed
cross-motions for summary judgment. As described in greater detail below, see infra Part III,
Defendants raised some of the very same arguments in support of their Motion for Summary
Judgment that they now press in their Motion for Reconsideration, and failed to raise others
altogether despite having ample opportunity to do so. See generally Mem. of P. & A. in Supp. of
Defs.’ Mot. for Summ. J. (“Defs.’ Summ. J. Mem.”), Docket No. [146]; Stmt. of Material Fact as
to Which There Is No Genuine Issue (“Defs.’ Summ. J. Stmt.”), Docket No. [146]; Reply to Pl.’s
Opp’n to Defs.’ Mot. for Summ. J. (“Defs.’ Summ. J. Reply”), Docket No. [162]; Resp. to Pl.’s
Resp. Stmt. Regarding Material Facts and Suppl. to Defs.’ Stmt. of Material Facts (“Defs.’ Resp.
Summ. J. Stmt.”), Docket No. [162]. On September 8, 2009, the Court issued a 61-page decision
resolving the parties’ respective cross-motions for summary judgment. See Estate of Gaither ex
rel. Gaither v. District of Columbia, 655 F. Supp. 2d 69 (D.D.C. 2009). Immediately on the
heels of the Court’s decision, Defendants filed the present [195] Motion for Reconsideration.
II. LEGAL STANDARD
Under Rule 54(b) of the Federal Rules of Civil Procedure, the district court may revise its
own interlocutory orders “at any time before the entry of judgment adjudicating all the claims
3 and all the parties’ rights and liabilities.”3 Fed. R. Civ. P. 54(b). While Rule 54(b) affords a
procedural mechanism for courts to reconsider prior interlocutory orders, its actual text provides
little guidance as to when reconsideration may be appropriate. Wultz v. Islamic Republic of Iran,
__ F. Supp. 2d __, 2011 WL 263676, at *3 (D.D.C. Jan. 28, 2011). To fill this gap, the United
States Court of Appeals for the District of Columbia has provided that relief under Rule 54(b) is
available “as justice requires.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., __ F.3d
__, 2011 WL 117067, at *8 (D.C. Cir. Jan. 14, 2011). The “as justice requires” standard may be
met where the district court has “patently” misunderstood the parties, strayed far afield of the
issues presented, or failed to consider a controlling or significant change in the law or facts since
the submission of the issue. Konarski v. Donovan, __ F. Supp. 2d __, 2011 WL 383995, at *5
(D.D.C. Feb. 7, 2011). In the final analysis, the district court must ask whether relief upon
reconsideration is “necessary under the relevant circumstances.” Lewis v. District of Columbia,
736 F. Supp. 2d 98, 102 (D.D.C. 2010) (internal quotation marks omitted). In this regard, the
district court’s discretion is broad. Id.
III. DISCUSSION
Defendants ascribe three errors to this Court’s prior opinion resolving the parties’ cross-
motions for summary judgment:
• First, Defendants contend that this Court erred because Gaither’s detention status at
3 Defendants also purport to rely upon Rule 59(e) of the Federal Rules of Civil Procedure as a basis for their Motion for Reconsideration, see Defs.’ Mem. at 8, but Rule 59(e) does not apply where, as here, the underlying order is non-final. Carranza v. Fraas, __ F. Supp. 2d __, 2011 WL 380164, at *3 n.2 (D.D.C. Feb. 7, 2011). Regardless, Defendants would be similarly unable to satisfy the standard under Rule 59(e). See generally Ciralsky v. Cent. Intelligence Agency, 355 F.3d 661, 671 (D.C. Cir. 2004) (describing the circumstances that would justify relief under Rule 59(e)).
4 the time of his death precludes Plaintiff from relying on the Fifth Amendment as the basis for the predicate constitutional violation supporting her Section 1983 claim, requiring judgment as a matter of law in their favor on that claim. See Defs.’ Mem. at 9-10; Defs.’ Reply at 1-10.
• Second, Defendants posit that this Court erred in finding that myriad genuine factual disputes were “material” because Plaintiff failed to connect Defendants’ conduct with a specific standard of care. See Defs.’ Mem. at 11-20; Defs.’ Reply at 10-16.
• Third, Defendants assert that this Court erred because Plaintiff failed to establish that Defendants’ conduct proximately caused Gaither’s death, warranting judgment as a matter of law in their favor. See Defs.’ Mem. at 20-23; Defs.’ Reply at 16-20.
All three arguments are without merit. The first should have been, but plainly was not,
raised in Defendants’ Motion for Summary Judgment; indeed, the Court chastised both parties at
some length in its opinion for failing to address the argument altogether. The second and third
arguments, in contrast, were to some extent raised by Defendants in their Motion for Summary
Judgment, but far from “overlooked,” as Defendants suggest, they were considered and rejected
by the Court.
The Court shall address each of these arguments in turn, but considers it necessary to
begin with an overarching observation. As previously stated, although styled as such,
Defendants’ motion is plainly not one for reconsideration. Defendants’ entire motion either
raises arguments that should have been, but were not, raised in their underlying Motion for
Summary Judgment, or merely recycles the same arguments already pressed and rejected. This
approach is, frankly, a waste of the limited time and resources of the litigants and the judicial
system. In this Circuit, it is well-established that “motions for reconsideration,” whatever their
procedural basis, cannot be used as “an opportunity to reargue facts and theories upon which a
court has already ruled, nor as a vehicle for presenting theories or arguments that could have been
5 advanced earlier.”4 Secs. & Exch. Comm’n v. Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C. 2010)
(internal citations omitted). While filing a motion of this kind is almost never appropriate,
Defendants’ decision to do so in this case is especially troubling because the parties were
expressly warned that the Court would not entertain “motions for reconsideration” simply
repackaging old arguments or presenting arguments that should have been raised earlier. See
Scheduling & Procedures Order, Docket No. [59], at 5-6.
While Defendants consistently attempt to elide the nature of the present motion, they
effectively concede that the original briefing in support of their Motion for Summary Judgment
was wholly inadequate. Indeed, in a footnote in the notice accompanying the Motion for
Reconsideration, Defendants’ counsel “apologizes to this Court for the brief originally filed in
this case.” Defs.’ Mot. for Recons. of the Court’s September 8, 2009 Order Granting in Part and
Denying in Part Their Mot. for J. on the Pleadings and/or for Summ. J., Docket No. [195], at 1
n.1.5 The apology, while appreciated, does not transform Defendants’ Motion for
4 This principle extends across the various procedural mechanisms parties may use to seek “reconsideration.” See, e.g., Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (“Rule 59(e) . . . may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.”); Greer v. Paulson, 505 F.3d 1306, 1317 (D.C. Cir. 2007) (Rule 60(b) does not afford a party “an opportunity to retry [its] case.”). The United States Court of Appeals for the District of Columbia Circuit recently reaffirmed that the principle applies with equal force in the context of Rule 54(b), which governs the present motion. See Capitol Sprinkler, 2011 WL 117067, at *8 (district courts act within the scope of their discretion in denying “reconsideration” under Rule 54(b) where the motion raises no arguments not already rejected on the merits); see also Howard v. Gutierrez, 571 F. Supp. 2d 145, 150 n.1 (D.D.C. 2008) (denying motion for reconsideration under Rule 54(b) where proponent “attempt[ed] to reargue theories that were already rejected.”). 5 The notice and memorandum accompanying Defendants’ Motion for Reconsideration bear the same title and were filed under the same docket entry, making it difficult to distinguish between the two for purposes of citation.
6 Reconsideration from an attempt to relitigate matters that have already been decided or that
should have been raised earlier into a bona fide motion for reconsideration. The Court shall not
belabor the point further; Defendants are cautioned that they should refrain from filing such
motions in the future. With that observation, the Court shall now turn to the task of explaining
why each of the three arguments raised by Defendants is without merit.
A. Defendants Are Not Entitled to Reconsideration Based Upon Their Belated Argument Regarding Gaither’s Detention Status
Defendants first assert that this Court erred because Gaither’s detention status at the time
of his death precludes Plaintiff from relying upon the Fifth Amendment as the basis for the
predicate constitutional violation supporting her Section 1983 claim. Specifically, Defendants
argue that, although formally labeled as a “pretrial detainee,” Gaither had already pled guilty and
was awaiting sentencing at the time of his death. From this, Defendants posit that Gaither was in
fact a “convicted inmate” and not a “pretrial detainee,” and therefore ineligible to lay claim to the
protections provided by the Fifth Amendment under the controlling case law.
The problem with Defendants’ argument is that, as they concede, it plainly was “not
argued in their motion for summary judgment.” Defs.’ Mem. at 5. While this concession alone
suffices to deny Defendants “reconsideration” of an argument that admittedly was never made,
Defendants further suggestion that “the factual support for this argument was before the Court,”
Defs.’ Mem. at 9, is not well-taken. The “factual support” referred to is a passing reference to
the fact that Gaither was “pending sentencing” buried in an expert report attached to Defendants’
Motion for Summary Judgment. Id. Defendants do not dispute (nor could they) that they never
raised the argument that Gaither’s detention status precluded Plaintiff’s reliance on the Fifth
Amendment in any way, shape, or form in their memoranda or statement of material facts. See
7 generally Defs.’ Summ. J. Mem.; Defs.’ Summ. J. Reply, Defs.’ Summ. J. Stmt; Defs.’ Resp.
Summ. J. Stmt. In any event, the expert report referenced by Defendants is the very same one
that was referenced by the Court when it raised sua sponte the potential legal implications of
Gaither’s detention status. See Estate of Gaither, 655 F. Supp. 2d at 75 n.5. To suggest that the
Court erred by “overlooking” the issue is simply disingenuous.
Indeed, in its opinion resolving the parties’ respective cross-motions for summary
judgment, the Court chastised the parties at some length for failing to articulate the legal
principles governing Plaintiff’s Section 1983 claim. See Estate of Gaither, 655 F. Supp. 2d at
85. Most notably, the Court observed that, while the “Constitution imposes certain obligations
on prison officials to ensure the health and safety of incarcerated individuals, whether that right is
guaranteed under the Fifth Amendment (as Plaintiff alleges) or under the Eighth Amendment
depends upon the status of the incarcerated individual—a point that neither party [] addressed.”
Id. Because neither party had considered the significance of Gaither’s detention status, the Court
went on to explain as follows:
It is well established that the Eighth Amendment’s prohibition on “cruel and unusual punishment” imposes various obligations upon prison officials, including as is relevant to the case at hand, a duty to protect prisoners from violence at the hands of other prisoners. It is equally well settled, however, that the Eighth Amendment’s prohibition applies only to persons who are subject to “punishment” which excludes pretrial detainees who have not been adjudicated as guilty of any crime and are therefore not subject to “punishment.” Accordingly, courts have recognized that pretrial detainees have an independent due-process right under the Fifth and Fourteenth Amendments to humane conditions while incarcerated. Although the exact contours of a pretrial detainee’s right under the Fifth Amendment have not yet been established, it is clear that the [Fifth] Amendment provides a pretrial detainee [protections] at least as great as the analogous Eighth Amendment right. Thus, although the rights under the Fifth and Eighth Amendments are comparable, it appears
8 that the Fifth Amendment may provide a greater degree of protection to pretrial detainees who are not yet subject to punishment of any kind.
Id. at 85-86 (internal citations omitted and quotation marks and notations altered). In light of this
distinction, the Court noted on its own accord that the question of whether “Gaither—as an
individual who had already pled guilty, but had not yet been sentenced—[was] a pretrial
detainee, whose rights are guaranteed under the Fifth Amendment, or [was] [] a convicted
inmate, whose rights are guaranteed under the Eighth Amendment,” was of potentially
constitutional significance. Id. at 86. But because the parties completely failed to address
Gaither’s detention status, the Court declined to resolve the question of Gaither’s status “on the
inadequate record [then] before it” and proceeded to address in detail the factual disputes that
otherwise precluded summary judgment on Plaintiff’s Section 1983 claim. Id. at 87. In other
words, even though the argument clearly was not raised by either party, the Court brought its
consideration to bear on the subject and took it as far as the record created by the parties would
allow. The suggestion that the Court “erred” under these circumstances is without merit, and
“reconsideration” is inappropriate.
Even if this were not the case, Defendants’ argument has been rendered moot in the time
since they filed their Motion for Reconsideration, as the Court recently granted Plaintiff leave to
file a Third Amended Complaint to plead the basis for the predicate constitutional violation
supporting her Section 1983 claim as arising in the alternative under the Fifth and Eighth
Amendments. See Order (Feb. 26, 2011), Docket No. [220]; Mem. Op. (Feb. 26, 2011), Docket
No. [221]. Because the same basic standard of “deliberate indifference” is generally applied to
both Fifth and Eighth Amendment claims, Estate of Gaither, 655 F. Supp. 2d at 87, Gaither’s
9 detention status is now principally relevant insofar as it determines which Amendment applies to
Plaintiff’s Section 1983 claim, and cannot serve as a basis for rejecting Plaintiff’s Section 1983
claim in its entirety.
B. Defendants Are Not Entitled to Reconsideration Based on Their Argument That Plaintiff Failed to Connect Their Conduct with a Standard of Care
Defendants next contend that this Court erred by finding that various factual disputes
were “material” because Plaintiff otherwise failed to establish a connection between Defendants’
conduct and a specific standard of care. Unlike their prior argument, this one was made in their
Motion for Summary Judgment, at least to an extent. Indeed, one of the headings in Defendants’
moving memorandum was aptly titled, “Plaintiff’s Failure to Establish a Breach of the
Applicable National Standard of Care Defeats Her Negligence Claims Against these
Defendants.” Defs.’ Summ. J. Mem. at 38. Defendants specifically argued, inter alia, that the
two expert penologists proffered by Plaintiff did not “show that [Defendants] breached an
applicable standard of care.” Id. at 39. In support of their Motion for Reconsideration,
Defendants now press the same argument, maintaining that “neither penologist set forth the
applicable standard of care for the claims under which [P]laintiff seeks to proceed.” Defs.’ Mem.
at 14. But the Court hardly “overlooked” the argument when raised in the context of Defendants’
Motion for Summary Judgment, but rather unambiguously considered and rejected the argument
“that Plaintiff has failed to establish the applicable standard of care necessary to succeed.” Estate
of Gaither, 655 F. Supp. 2d at 100-01. The Court described Defendants’ argument, set forth the
applicable legal standard, and then explained why Defendants had failed to carry their burden of
showing that they were entitled to summary judgment on that point. Id. Most importantly,
Defendants “entirely ignored” the substance of the report and opinions proffered by Plaintiff’s
10 expert penologists. Id. at 101. The Court described Defendants’ briefing on the issue as “wholly
inadequate,” and concluded that it could not render a definitive ruling based on the record created
by the parties. Id. Defendants dispute none of this, but rather seek to relitigate the matter anew
in the guise of a motion for “reconsideration.” See Defs.’ Mem. at 11 n.3. However, “where
litigants have once battled for the court’s decision, they should neither be required, nor without
good reason permitted, to battle for it again.” Lewis, 736 F. Supp. 2d at 102 (internal quotation
marks omitted). This is especially true where, as here, a party seeks to resurrect an argument that
it made in the context of summary judgment outside all the procedural safeguards attendant to
summary judgment, including the exchange of statements delineating the disputed factual
allegations. The Court declines Defendants’ invitation to permit them to use Rule 54(b) as a
vehicle for rearguing the merits of their position where they failed to do so adequately in the first
place.
True, the Court did provide in a footnote that it “may permit Defendants to re-raise this
issue at a later date in advance of trial, if appropriate,” Estate of Gaither, 655 F. Supp. 2d at 101
n.24, but that was hardly an invitation to repackage the same argument in a motion for
reconsideration and to supplement their position with factual and legal argument that should have
been, but undeniably was not, made earlier. To the extent Defendants intend to challenge the
sufficiency of the testimony proffered by Plaintiff’s expert penologists, they must do so through a
proper motion in limine, such as one predicated on Daubert v. Merrill Dow Pharm., Inc., 509
U.S. 579 (1993), and the Court shall consider whether such a motion is appropriate in the context
of the pre-trial conference.
11 C. Defendants Are Not Entitled to Reconsideration Based on Their Argument That Plaintiff Failed to Establish Proximate Causation
Third, and finally, Defendants assert that the Court erred in denying them summary
judgment because Plaintiff failed to establish that Defendants’ conduct was the proximate cause
of Gaither’s death. When Defendants pressed this same argument in the context of their Motion
for Summary Judgment, they dedicated less than a paragraph to it in their opening memorandum
and ignored it altogether in their reply. The sum total of Defendants’ argument was as follows:
Assuming arguendo that plaintiff can show deficiencies in the District’s customs, policies and/or practices, liability still would not attach unless proximate cause is shown. As held by Monell, the District’s policies, practices, or customs must have led to the constitutional misconduct. In the case at bar, there is insufficient evidence in the record to establish that the District’s asserted failures proximately caused Mikal Gaither’s death. Instead, Mr. Gaither failed to notify the District defendants that he had provided testimony to the grand jury about a murder for which his likely assailant was in custody. Because the District had no way of knowing any potential risk of harm that Mr. Gaither’s assailant posed, it did not know that Mr. Gaither should have been separated from his likely assailant or that he needed additional protection. Plaintiff’s failure to show any linkage between the alleged misconduct and the District defendants that resulted from an unconstitutional District custom, practice or policy, and the death of Mr. Gaither requires that summary judgment be entered in favor of the District.
Defs.’ Summ. J. Mem. at 28-29. The argument is plainly focused on the contention that
Gaither’s claim is barred by the doctrine of contributory negligence, and the Court dedicated no
less than seven pages in its opinion to explaining why genuine disputes of material fact precluded
summary judgment on the issue. See Estate of Gaither, 655 F. Supp. 2d at 103-06. The Court
need not revisit the details of its decision again here; suffice it to say that, given the heavily fact-
based nature of the inquiry and the existence of factual disputes, the Court concluded that the
issue was one for the jury. Id. at 106. But the Court did not stop there; affording Defendants’
12 argument a generous interpretation as a broader challenge to Plaintiff’s evidence of proximate
causation, the Court nevertheless found that Defendants “failed to provide any factual or legal
citations in support of this assertion.” Id. at 87 n.13. Emphasizing that “the proximate cause of
an injury is ordinarily a question for the jury,” the Court concluded that Defendants had failed to
establish that they were entitled to summary judgment. Id. (internal quotation marks omitted).
Defendants really dispute none of this, but in a conclusory manner paint Plaintiff’s argument that
they failed to raise the issue in a timely manner as “unavailing” and rejoin with the platitude that
arguments “may be reconsidered if justice so requires.” Defs.’ Reply at 16-17. However, the
Court again declines Defendants’ invitation to exercise its discretion to permit them to use Rule
54(b) as a vehicle for rearguing the merits of their position where they failed to do so adequately
in the first place.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that justice does not require
“reconsideration” under the circumstances presented in this particular case. Therefore, in an
exercise of its discretion, the Court shall DENY Defendants’ [195] Motion for Reconsideration.
An appropriate Order accompanies this Memorandum Opinion.
Date: February 28, 2011
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge