Fuller v. Barnes, et al

Filing 107

ORDER denying 105 Motion to Vacate or Alter Judgment. Signed by Chief Judge William H. Steele on 4/10/2014. Copy mailed to plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID BOY FULLER,
Plaintiff,
v.
DR. TESEMMA, et al.,
Defendants.

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CIVIL ACTION 09-0839-WS-N

ORDER
This closed civil matter comes before the Court on plantiff’s Motion to Vacate or Alter
the Judgment (doc. 105).
I.

Background.
Plaintiff, David Boy Fuller, an Alabama state prisoner proceeding pro se, sued 15

defendants in this § 1983 action alleging that he received inadequate medical care and treatment
while incarcerated at Holman Correctional Facility. Although he complains of a wide variety of
medical ailments, Fuller’s claims in this case center on allegations concerning diagnosis and
treatment of diabetes, failure to provide treatment after a head injury, and nursing staff’s refusal
to cut his toenails on certain occasions.
On December 27, 2013, Magistrate Judge Nelson entered a 34-page Report and
Recommendation (doc. 92) in which she recommended that the served defendants’ motion for
summary judgment be granted, and that all claims against unserved defendants be dismissed as
frivolous and for failure to state a claim on which relief can be granted. In summary, the Report
and Recommendation reasoned as follows: (i) Fuller’s Eighth Amendment claims against Dr.
Barnes relating to diabetes treatment fail because the record establishes that Dr. Barnes closely
monitored him for blood sugar problems and took other steps to prevent or delay the onset of
diabetes; (ii) Fuller’s Eighth Amendment claims against Dr. Tesemma relating to diabetes
treatment are meritless because medical records establish that Dr. Tesemma took substantial
steps to monitor Fuller for diabetes, prescribed a treatment and testing plan to address Fuller’s

risk of becoming diabetic, and was not deliberately indifferent in diagnosing Fuller as diabetic;
(iii) Fuller’s Eighth Amendment claims against numerous other medical-staff defendants relating
to diabetes treatment lack factual support because he was closely monitored for diabetes, the
treating physicians had determined him to be a pre-diabetic, and the defendant nurses followed
the treatment plan and diagnoses of the treating physicians; (iv) plaintiff’s Eighth Amendment
claim relating to failure to remove glass from his eye is properly dismissed because there is no
evidence that glass fragments remained in his eye after his initial treatment, and any
shortcomings in treatment would constitute at most mere negligence, not deliberate indifference;
(v) plaintiff’s Eighth Amendment claims relating to certain defendants’ alleged refusal to give
him blood medications is meritless because the record contradicts Fuller’s allegation that any
such omission occurred (although Fuller refused to accept the proffered medication on certain
occasions); (vi) Fuller’s Eighth Amendment claims against defendants Nettles and Turner for
refusing to soak his feet and trim his toenails on June 25, 2009 are deficient because the record
shows neither a serious medical need regarding his toenails nor proof that Fuller suffered serious
medical harm (or any harm at all, for that matter) from the withholding of his desired treatment
on that date; (vii) Fuller’s Eighth Amendment claims against defendant Langford for failing to
change a bandage on his toe on April 15, 2010 fails because there was no record evidence of a
standing order to change the bandage daily, the changing of the bandage was not a serious
medical need, and Fuller suffered no harm as a result of the alleged lack of care; (viii) plaintiff’s
Eighth Amendment retaliation claims fail for want of proof of a causal connection between the
protected activity and the adverse action (as to certain claims) and lack of evidence of protected
activity (as to others); (ix) plaintiff’s Eighth Amendment claim against Sgt. Adams for
interfering with medical treatment lacks validity because the record shows that this defendant (a
non-medical prison official) was following the directives of prison medical staff and had no
reason to believe that they were mistreating Fuller; and (x) plaintiff’s Eighth Amendment claim
against defendant Naglich for failure to train and supervise fails for want of evidence of a policy
or custom resulting in deliberate indifference to constitutional rights, as well as the lack of
underlying constitutional violations by the other defendants.
This Court granted Fuller multiple extensions of time to file objections to the Report and
Recommendation. (See docs. 96, 99.) On March 7, 2014, Fuller filed 89 pages of Objections
(doc. 100), consisting of 32 pages of handwritten argument and 57 pages of exhibits. The

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undersigned reviewed these materials and, on March 10, 2014, entered an Order (doc. 101) and
Judgment (doc. 102) adopting the Report and Recommendation pursuant to 28 U.S.C. §
636(b)(1)(B) and dismissing this action in its entirety. Plaintiff now seeks reconsideration of that
ruling pursuant to Rule 59(e), Fed.R.Civ.P.
II.

Analysis.
Fuller’s Motion to Vacate or Alter Judgment makes passing reference to Rule 59(e), but

does not otherwise acknowledge or address the stringent standard for relief governing his
Motion. A dissatisfied federal litigant is not entitled to reconsideration of anything and
everything, merely because he disagrees with a court’s ruling. To the contrary, “[t]he only
grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors of law
or fact.” United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009) (citation and internal
marks omitted); see also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (similar). To
prevail on a Rule 59(e) motion, “[t]he losing party must do more than show that a grant of the
motion might have been warranted; he must demonstrate a justification for relief so compelling
that the district court was required to grant the motion.” Maradiaga v. United States, 679 F.3d
1286, 1291 (11th Cir. 2012) (citations and internal marks omitted). Fuller has not done so.
Authority is legion for the proposition that motions to reconsider “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.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605,
171 L.Ed.2d 570 (2008) (citation omitted).1 Rule 59(e) motions do not afford an unsuccessful

1

See also Smith v. Ocwen Financial, 2012 WL 3758378, *2 (11th Cir. Aug. 30,
2012) (“A motion for reconsideration cannot be used to relitigate old matters, raise arguments, or
present evidence that could have been raised prior to the entry of judgment.”) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (similar); Kight v. IPD Printing &
Distributing, Inc., 2011 WL 2015055, *1 (11th Cir. May 24, 2011) (motion for reconsideration
properly denied where movant “merely attempted to relitigate old matters and presented
evidence that could have been raised prior to the entry of judgment”); Morton v. Astrue, 2010
WL 2130613, *3 (11th Cir. May 27, 2010) (“In his motion to alter or amend judgment, …
Morton merely attempted to reargue factual issues previously decided by the district court. The
district court therefore did not abuse its discretion in denying the motion.”); Dyas v. City of
Fairhope, 2009 WL 5062367, *3 (S.D. Ala. Dec. 23, 2009) (“Motions to reconsider serve a
valuable but limited function. They do not exist to permit losing parties to prop up arguments
previously made or to inject new ones, nor to provide evidence or authority previously omitted.
(Continued)
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litigant “two bites at the apple.” American Home Assur. Co. v. Glenn Estess & Associates, Inc.,
763 F.2d 1237, 1239 (11th Cir. 1985). Nor are such motions properly filed “as a kneejerk
reaction by a dissatisfied federal court loser.” Lee v. Thomas, 2012 WL 3137901, *2 (S.D. Ala.
Aug. 1, 2012); see also Thalassinos v. Adair, 2013 WL 3231373, *2 (S.D. Ala. June 26, 2013)
(“A Motion to Reconsider is not appropriately filed merely because a litigant does not agree with
(or does not wish to abide by) the court’s ruling.”); Hughes v. Stryker Sales Corp., 2010 WL
2608957, *2 (S.D. Ala. June 28, 2010) (rejecting notion that motions to reconsider “are
appropriate whenever the losing party thinks the District Court got it wrong,” but finding that
they are instead “an extraordinary remedy” that must be “employed sparingly”) (citations
omitted).2 “They are neither appeal substitutes nor a ‘dry run’ to test arguments in anticipation
of a forthcoming appeal.” Lee, 2012 WL 3137901, at *2.
Fuller’s Motion to Vacate or Alter Judgment advances a pair of arguments in support of
his request for relief from the March 10 Order and Judgment. First, he cites the habeas corpus
legal standard identified in 28 U.S.C. § 2254 and argues that that the state court unreasonably
applied established federal law. (Doc. 105, at 1.) These authorities and principles have no
application here. Plaintiff’s case is not a § 2254 habeas corpus action, but is instead a § 1983
civil rights action. This Court did not have occasion to review the constitutionality of any statecourt rulings in the context of Fuller’s complaint; rather, it properly examined Fuller’s objections
to Judge Nelson’s Report and Recommendation under the legal standards set forth in 28 U.S.C. §
636(b)(1), Rule 72(b), Fed.R.Civ.P., and Local Rule 72.4. In any event, the Motion to Vacate or
Alter Judgment identifies no manifest errors of law or fact in the Report and Recommendation’s
recitation or application of Eighth Amendment jurisprudence that might warrant relief under
Rule 59(e).

They do not, in short, serve to relieve a party of the consequences of its original, limited
presentation.”).
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See also Garrett v. Stanton, 2010 WL 320492, *2 (S.D. Ala. Jan. 18, 2010) (“Far
too often, litigants operate under the flawed assumption that any adverse ruling on a dispositive
motion confers upon them license … to relitigate issues that have already been decided, to
champion new arguments that could have been made before, and otherwise to attempt a ‘doover’ to erase a disappointing outcome. This is improper.”).

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Second, Fuller points generally to his objections to the Report and Recommendation, and
makes conclusory statements (apparently relying on those previously filed objections) that
defendants were subjectively aware of the risk to plaintiff’s health and recklessly disregarded his
pain and suffering. (Doc. 105, at 2.) Fuller does not specify particular issues as to which he
contends a manifest error of law or fact was made in the March 10 Order and Judgment; rather,
he would apparently have this Court globally review his entire 89-page submission of objections
to the Report and Recommendation anew at this time. But this Court already reviewed,
considered and rejected Fuller’s objections to the Report and Recommendation, antecedent to
entry of the March 10 Order and Judgment.3 A Rule 59(e) Motion generically requesting that the
court reconsider everything (essentially granting the losing party an across-the-board “do-over”)
is improper. Indeed, as shown by the aforementioned authorities, a motion to reconsider
pursuant to Rule 59(e) cannot properly be brought to petition the court broadly to take another
look at a phalanx of arguments that have already been considered and rejected. Fuller’s Motion
constitutes just the sort of “relitigation of old matters” that courts have routinely refused to
countenance in the context of motions to reconsider.
III.

Conclusion.
For all of the foregoing reasons, Fuller’s Motion to Vacate or Alter the Judgment (doc.

105) is denied.
DONE and ORDERED this 10th day of April, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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In his Motion, Fuller complains of what he calls “the Federal Courts [sic] failure
to review his Federal Claims.” (Doc. 105, at 2.) Fuller is wrong. Magistrate Judge Nelson
comprehensively reviewed all of his federal claims and the mountain of medical records
underlying them in preparing the Report and Recommendation. Upon receipt of Fuller’s
objections, this Court carefully examined them and engaged in de novo review of all portions of
the Report and Recommendation to which objection was made, as required by § 636(b)(1). This
is categorically not a case in which any court failed or refused to examine Fuller’s federal claims
as presented in the final iteration of his pleading.

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