McClurg et al v. Maricopa County et al

Filing 172

ORDER that Plaintiffs' 171 Motion for New Trial, which the Court construes as a motion to alter judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure is DENIED. That Plaintiffs' 169 Motion to Conduct a Daubert Hearing is DENIED. Signed by Magistrate Judge Michelle H Burns on 10/9/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Elijah McClurg, et al.,

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Plaintiffs,

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vs.

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Maricopa County, et al.,

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Defendants.

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CIV-09-1684-PHX-MHB
ORDER

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Pending before the Court is Plaintiffs’ Motion for New Trial, which the Court
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construes as a motion to alter judgment pursuant to Rule 59(e) of the Federal Rules of Civil
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Procedure (Doc. 171).1

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This case arises out of the confinement and, subsequent, death of David Wayne
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McClurg. Mr. McClurg was arrested and, subsequently, transferred from the Yavapai
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County jail to the Maricopa County jail on October 23, 2007. When he was initially booked
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into the Maricopa County jail, Mr. McClurg was first seen by the medical staff and received
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an intake medical assessment wherein he was asked a number of questions about his medical
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history. In the assessment, Mr. McClurg did not state that he was diabetic; he did not state
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that he required a special diet or that he had any special needs; he never indicated that he
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Plaintiffs’ request for oral argument will be denied because oral argument will not
aid in the Court’s decision. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake
at Las Vegas Investors Group, Inc. v. Pacific Malibu Development Corp., 933 F.2d 724, 729
(9th Cir. 1991).

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suffered from any leg pain, numbness or weakness; he denied a history of hospitalization;

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and denied having vision problems. He did indicate that he had high blood pressure.

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Soon after he was booked, Mr. McClurg fell on two separate occasions – once on

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October 29, 2007, and then again on November 26, 2007. According to the record, he was

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seen by medical personnel on each occasion and received a physical examination after the

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October 29, 2007 fall.

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Mr. McClurg was seen again by medical on December 6, 2007, for gradually

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increasing edema (swelling) in his foot. Upon examination it was noted that there was a

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pulse and sensation present in the foot and he was prescribed Lasix (a diuretic) and KCl

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(potassium chloride) and treated for the edema. He had daily care for the edema for a period

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of seven days.

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On December 10, 2007, Mr. McClurg, who was assigned to a cell by himself, fell off

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the top bunk, suffering a head laceration and cut lip. His wounds were treated and he was

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transported to Maricopa Medical Center (“MMC”) for evaluation. Mr. McClurg was

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apparently treated at MMC and returned to jail.

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On December 11, 2007, Mr. McClurg returned to medical as he was bleeding from

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his scalp and had a swollen foot. He was monitored by jail medical staff and was then sent

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back to MMC for further evaluation and treatment, and was ultimately admitted. He

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remained in MMC until February 19, 2008, when he was admitted into the infirmary at

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Maricopa County jail. Mr. McClurg was released from custody on February 22, 2008.

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On September 24, 2008, seven months after being released from custody, Mr.

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McClurg died. According to the death certificate, the immediate cause of death was

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myocardial infarction (heart attack) due to atherosclerosis (blocked arteries).

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On October 12, 2010, Plaintiffs filed their First Amended Complaint. Shortly
thereafter, Defendants filed their Motions to Dismiss.

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On September 23, 2011, the Court granted in part and denied in part Defendants’

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Motions to Dismiss. The Court found that Plaintiffs’ claims based on violation of the

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Privileges and Immunities Clause of the Fourteenth Amendment; Plaintiffs’ claims based on

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cruel and unusual punishment; Plaintiffs’ claims based on equal protection; Plaintiffs’ claims

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for vicarious liability/respondeat superior; Plaintiff Elijah McClurg’s state law claims against

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Maricopa County; and non-jural entities MCCHS and the MCSO, were all dismissed from

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this action based on the Court’s previous ruling. In addition, for the reasons set forth in the

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Court’s prior ruling, the Court dismissed Plaintiffs’ state law claims against the remaining

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Defendants.

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Hernandez, Hargrove, Barker, and Lamarre were dismissed from this action in its entirety.

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The Court, however, concluded that Plaintiffs’ claims alleged pursuant to 42 U.S.C. § 1983

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against Maricopa County and Arpaio regarding the conditions of confinement and medical

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care, as well as, Plaintiffs’ related claims for loss of familial association and the Estate’s

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claims for pain and suffering remain.

Further, the Court determined that Defendants Malinchalk, Patterson,

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Maricopa County filed its Motion for Summary Judgment and Separate Statement of

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Facts on January 10, 2012. (Docs. 145, 146.) Arpaio filed its Motion for Summary

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Judgment and Separate Statement of Facts on January 12, 2012. (Docs. 147, 148.) Plaintiffs

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filed their Response to Defendants Motions for Summary Judgment, Request for Rule 56(d)

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Relief, Separate Statement of Facts, and Objections to Maricopa County’s Separate

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Statement of Facts on February 23, 2012. (Docs. 155, 156, 157.) Arpaio and Maricopa

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County filed their Replies in Support of Motions for Summary Judgment March 12, 2012.

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(Docs. 158, 161.)

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The Court granted Defendant Maricopa County’s Motion for Summary Judgment

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(Doc. 145) and Defendant Sheriff Joseph Arpaio’s Motion for Summary Judgment (Doc.

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147) on August 27, 2012. On that same date, the Court also denied Plaintiffs’ Request for

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Rule 56(d) Relief (Doc. 155) and ordered that the Clerk of Court must terminate this action

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and enter judgment accordingly.

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Rule 59(e) offers an “extraordinary remedy, to be used sparingly in the interests of

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finality and conservation of judicial resources.” Kona Enter., Inc. v. Estate of Bishop, 229

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F.3d 877, 890 (9th Cir. 2000). The Ninth Circuit has consistently held that a motion brought

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pursuant to Rule 59(e) should only be granted in “highly unusual circumstances.” Id.; see

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389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Reconsideration is

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appropriate only if (1) the court is presented with newly discovered evidence, (2) there is an

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intervening change in controlling law, or (3) the court committed clear error. See McDowell

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v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam); School Dist. No. 1J,

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Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion for

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reconsideration is not a forum for the moving party to make new arguments not raised in its

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original briefs, see Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918,

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925-26 (9th Cir. 1988), or to ask the court to “rethink what it has already thought through,”

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United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998) (quotation omitted).

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The Court finds that Plaintiffs have failed to present newly discovered evidence,

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demonstrate an intervening change in controlling law, or establish that the Court committed

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clear error. Further, while Plaintiffs express their disappointment and reassert arguments set

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forth in their response to Defendants’ Motions, such is not proper on a motion for

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reconsideration. The Court will not analyze the same case law, and “rethink what it has

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already thought through,” Rezzonico, 32 F.Supp.2d at 1116.

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Accordingly,

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IT IS ORDERED that Plaintiffs’ Motion for New Trial, which the Court construes

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as a motion to alter judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure

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(Doc. 171) is DENIED;

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IT IS FURTHER ORDERED that Plaintiffs’ Motion to Conduct a Daubert Hearing
(Doc. 169) is DENIED.
DATED this 9th day of October, 2012.

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