Worley # 257008 v. Correctional Medical Services

Filing 17

ORDER the reference to the Magistrate Judge is withdrawn with respect to only the 9/27/12 Motion for Reconsideration and Notice. All other matters will remain with the Magistrate Judge. Plaintiff's 9/27/12 Motion for Reconsideration 13 and Notice 14 are denied. Signed by Senior Judge Robert C Broomfield on 11/21/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Glenn Cornell Worley,

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Plaintiff,

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vs.

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Correctional Medical Services, et al.,
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Defendants.
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No. CV 12-440 PHX RCB (MEA)
ORDER

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On March 1, 2012, Plaintiff Glenn Cornell Worley, who is confined in the Arizona

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State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983 and an Application to Proceed In Forma Pauperis. In an April 23, 2012 Order, the

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Court granted the Application to Proceed and dismissed the Complaint because Plaintiff had

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failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that

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cured the deficiencies identified in the Order.

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On May 30, 2012, Plaintiff filed his First Amended Complaint (Doc. 8). In a July 30,

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2012 Order, the Court ordered Defendant Fredrickson to answer Count I of the First

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Amended Complaint and dismissed the remaining claims and Defendants without prejudice.

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On September 27, 2012, Plaintiff filed a Motion for Reconsideration and attached a

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proposed Second Amended Complaint to the Motion. Plaintiff also filed, on the same date,

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a “Notice re: Complaint for Negligence” (Doc. 14).

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“Motions to reconsider are appropriate only in rare circumstances.” Defenders of

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Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). “The purpose of a motion

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for reconsideration is to correct manifest errors of law or fact or to present newly discovered

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evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Such motions

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should not be used for the purpose of asking a court “‘to rethink what the court had already

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thought through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351

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(quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.

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1983)).

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The Court has reviewed the First Amended Complaint, the Order of dismissal, and

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Plaintiff’s Motion for Reconsideration. The Court finds no basis to reconsider its dismissal

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of claims in the July 30th screening Order. The Court will therefore deny Plaintiff’s Motion

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for Reconsideration.

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To the extent that Plaintiff seeks leave to file a second amended complaint, the Court

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will also deny the Motion. Plaintiff’s proposed Second Amended Complaint does not

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contain all of Plaintiff’s claims for relief. Specifically, the dental claim which the Court sent

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forward in the July 30, 2012 Order is not included and it is unclear whether Plaintiff intends

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to abandon this claim. Further, the only Defendant named in the proposed Second Amended

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Complaint is the State of Arizona. Under the Eleventh Amendment to the Constitution of the

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United States, a state or state agency may not be sued in federal court without its consent.

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Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880

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F.2d 1040, 1045 (9th Cir. 1989). Furthermore, “a state is not a ‘person’ for purposes of

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section 1983.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991)

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(citation omitted). Accordingly, the State of Arizona is not a proper defendant.

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To the extent that Plaintiff intends his September 27, 2012 Notice to add a claim for

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medical negligence to this action, the Court will deny the Notice. Plaintiff states that he

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intends to bring his claims under the Eighth Amendment. To state an Eighth Amendment

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medical claim, a plaintiff must show that the defendants acted with “deliberate indifference

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to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting
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Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “Deliberate indifference is a high legal

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standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate

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indifference, a prison official must both know of and disregard an excessive risk to inmate

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health; “the official must both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer

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v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference is a higher standard than

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negligence or lack of ordinary due care for the prisoner’s safety. Farmer, 511 U.S. at 835.

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“Neither negligence nor gross negligence will constitute deliberate indifference.” Clement

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v. California Dep’t of Corrections, 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002); see also

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Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,”

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“negligence,” or “medical malpractice” do not support a claim under § 1983). Accordingly,

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negligent acts do not support an Eighth Amendment medical claim.

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn with respect to only the

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September 27, 2012 Motion for Reconsideration and Notice. All other matters will remain

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with the Magistrate Judge.

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(2)

Plaintiff’s September 27, 2012 Motion for Reconsideration (Doc. 13) and

Notice (Doc. 14) are denied.
DATED this 21st day of November, 2012.

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