Opinion
CIVIL ACTION NO. 4:01-CV-232-Y.
June 2, 2003.
Plaintiff Maurice Greer initially filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e) on April 10, 2003, but on April 28, 2003, Greer filed what he labeled as an amended motion for reconsideration under Federal Rule of Civil Procedure 59(e). Because the April 28 motion is titled as an "amended" motion, because it was prepared after Greer reviewed the videotape evidence relied upon by the Court, and because Greer noted there that the first motion filed was not meant to mislead this Court, the Court determines that the first motion, filed on April 10, 2003, must be deemed moot as superseded by the amended motion. The Court has construed the April 28, 2003, motion as a motion to alter or amend judgment. After review and consideration of the motion to alter or amend judgment, the Court finds that it should be granted only to the extent that the Court will correct errors in the March 31, 2003, Order Granting Defendants Motion for Summary Judgment, otherwise the motion will be denied.
The Court will deem the April 28 amended motion as timely under Rule 59(e), since Greer timely filed the original Rule 59(e) motion.
Notwithstanding the errors corrected herein, Greer is not entitled to any substantive relief, and the summary judgment granted on March 31, 2003, is not affected.
In the consideration of the summary judgment in this matter, the Court reviewed in detail two videotape recordings of the cell block during the time of the events made the basis of Greer's suit. In his Rule 59(e) amended motion, Greer has pointed out that the Court erred in the recitation of factual events shown on the videotapes. Specifically, the Court erred in its recitation of where an inmate placed pieces of paper, its observation that Greer smoked cigarettes, and in noting the time that Greer left the cell block. In its previous review, the Court mistakenly failed to note that Greer had changed clothes, and thus confused the actions of another inmate with those of Greer in the recitation of events during the last few minutes before Greer was escorted out of the cell. Thus, as a result of Greer's amended motion, the Court finds and determines, and it is hereby ORDERED, that the following corrections are made to the March 31, 2003, Order Granting Defendants' Motion for Summary Judgment:
As noted above, this error changed neither the Court's analysis of whether Greer suffered serious injury nor the determination that he did not. Observation of Greer within minutes after the tear-gas cloud dissipated reveals no signs of difficulty with breathing and no apparent problems with his nose or his eyes.
(1) at page 9, the description of the event at 1:36:50 is amended to read —
1:36:50 inmate steps up on table and sticks toilet paper into the ceiling area out-of-view
(2) at page 10, the description of the event at 2:27:12 is amended to read —
2:27:12 inmate steps up on table and places more toilet paper in ceiling area out-of-view
(3) at page 1 all descriptions after the one for the time of 3:02:00 are amended to read —
3:02:30 Greer places items in his bag and in a container on a bunk bed 3:03:25 Greer moves around the tank without any sign of distress 3:05:30 Greer again places items in a container on a bunk bed 3:08:30 Greer changes clothes beside bunk bed 3:11:50 Greer talks to fellow inmate and shakes his hand in area in foreground of camera view with no observable injury or distress 3:19:56 Greer leaves cell and is escorted down the hall by jailers out of camera view
(4) at page 12, line 4 — the phrase "and then lighting and smoking two cigarettes." is deleted, and the sentence shall end with the words "respiratory distress."
(5) at page 15, line 15 — the sentence "Then, just a few minutes later, Greer was smoking cigarettes." is deleted.
It is further ORDERED that Greer's April 10, 2003, motion for reconsideration [docket 76], be, and is hereby DENIED as moot.
It is further ORDERED that Greer's April 28, 2003, amended motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) [docket 83] be, and is hereby GRANTED only to the extent the March 31, 2003, Order Granting Defendants' Motion for Summary Judgment is amended as set forth herein, and otherwise, the motion is DENIED.