Arenberg v. Ryan et al

Filing 9

ORDER denying 8 Plaintiff's Rule 59(e) Motion to Alter or Amend Judgment. Signed by Judge Mary H Murguia on 11/22/10.(LSP)

-MHB Arenberg v. Ryan et al

Doc. 9

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MDR

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

David Arenberg, Plaintiff, vs. Charles Ryan, et al., Defendants.

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No. CV 10-2228-PHX-MHM (MHB) ORDER

I.

Background On October 19, 2010, Plaintiff David Arenberg, who is confined in the Arizona State

Prison Complex -Florence in Florence, Arizona, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983, an Application to Proceed In Forma Pauperis, and a Motion for Preliminary Injunction. In his Complaint, Plaintiff alleged that Defendant Ryan is responsible for executing and maintaining contracts with outside medical providers and that his failure to do so constitutes deliberate indifference; that Defendant Malcolm is responsible for scheduling and providing outside medical consultations, but acted with deliberate indifference by failing to schedule and provide an outside medical consultation for Plaintiff; that Defendant Taylor is responsible for ensuring that outside medical consultations are "made and kept" and was deliberately indifferent by failing to schedule and ensure Plaintiff's outside urology appointment; and that Defendant Taylor was deliberately indifferent in failing to timely

Dockets.Justia.com

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answer Plaintiff's grievance and Defendant Ryan was deliberately indifferent in failing to answer Plaintiff's second-level grievance appeal. In a November 3, 2010 Order, the Court granted Plaintiff in forma pauperis status and dismissed without prejudice Plaintiff's claim against Defendant Malcolm, his claims against Defendant Taylor, and his claim regarding Defendant Ryan's failure to respond to Plaintiff's grievances. The Court ordered Defendant Ryan to answer the portion of Plaintiff's Complaint alleging that Defendant Ryan was deliberately indifferent in failing to maintain contracts with outside medical providers and ordered Defendant Ryan to respond to Plaintiff's Motion for Preliminary Injunction.1 On November 10, 2010, Plaintiff filed a Rule 59(e) Motion to Alter or Amend Judgment (Doc. 8). II. Discussion In his Motion, Plaintiff argues that the Court should reinstate his claims against Defendants Malcolm and Taylor because the failure to schedule or provide outside medical appointments constitutes deliberate indifference. He also contends that the Court should reinstate his claims against Defendants Ryan and Taylor regarding their failure to respond or failure to timely respond to Plaintiff's grievances, asserting that the failure to respond to medical grievances constitutes deliberate indifference. A. Federal Rule of Civil Procedure Rule 59(e)

Plaintiff cannot bring his motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure because no judgment was entered and the Court's November 3, 2010 Order is not an appealable interlocutory order. See Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989) (noting that Rule 59(e) only applies to final judgments and appealable interlocutory orders); cf. Anderson v. Allstate Ins. Co., 630 F.2d 677, 680 (9th Cir. 1980)

The Court directed the Clerk of Court to send Plaintiff a service packet, which Plaintiff returned on November 12, 2010. The Clerk of Court, on November 15, 2010, forwarded the service packet to the United States Marshal for service on Defendant Ryan.
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("Because the orders appealed from dismiss the action as to only some of the defendants, it is clear that they were not final orders pursuant to 28 U.S.C. § 1291 at the time they were entered. Moreover, plaintiffs did not obtain the interlocutory certificate required by Fed. R. Civ. P. 54(b)."). However, the Court, in its discretion, will review Plaintiff's Motion as a motion for reconsideration pursuant to Local Rule of Civil Procedure 7.2(g). B. Motion for Reconsideration

"Motions to reconsider are appropriate only in rare circumstances." Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Such motions should not be used for the purpose of asking a court "`to rethink what the court had already thought through ­ rightly or wrongly.'" Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). The Court has reviewed the Complaint, the November 3rd Order, and Plaintiff's Motion. Thee Court finds no basis to reconsider its decision. Thus, the Court will deny Plaintiff's Motion for Reconsideration. Accordingly, IT IS ORDERED that Plaintiff's Rule 59(e) Motion to Alter or Amend Judgment (Doc. 8) is denied. DATED this 22nd day of November, 2010.

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