                            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




                                                 13
