Worley # 257008 v. Correctional Medical Services

Filing 38

ORDER, Plaintiff's Motion to Alter or Amend the Judgment 36 is denied; the Clerk is directed to accept no further filings in this case except in connection with an appeal. Signed by Senior Judge Robert C Broomfield on 10/21/13.(REW)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Glenn C. Worley, 10 Plaintiff, 11 12 No. CV 12-0440-PHX-RCB vs. ORDER Correctional Medical Services, et al., 13 Defendants. 14 15 Plaintiff Glenn Cornell Worley, an inmate confined by the Arizona Department of 16 Corrections (ADC), filed this pro se civil rights action. (Doc. 8.) Defendant Fredrickson 17 moved for summary judgment, and the Court granted the motion. (Doc. 34.) Plaintiff 18 now moves to Alter or Amend the Judgment. (Doc. 36.) 19 20 The Court will deny the motion. I. Motion to Alter or Amend Judgment 21 A. 22 Plaintiff’s sole claim was for violation of his Eighth Amendment right to dental 23 care when Defendant, Dr. Fredrickson, D.D.S., refused to perform a root canal on 24 Plaintiff, insisting instead that Defendant extract the tooth. (Doc. 8.) Plaintiff claimed 25 that as a result of Defendant’s actions, Plaintiff developed a cyst that burst and then 26 spread an infection to his tongue and inner cheek. Another dentist provided Plaintiff with 27 a root canal several months later. (Id.) 28 Background 1 The Court granted summary judgment to Defendant, finding that Plaintiff failed to 2 create a triable issue of fact as to deliberate indifference for refusing to perform a root 3 canal on tooth #19 or to provide antibiotics. (Doc. 34 at 4.) The Court also found that 4 Plaintiff failed to provide admissible evidence that he had a ruptured cyst that was caused 5 by infection in tooth #19. (Id.) 6 The Court found that it was undisputed that Defendant saw Plaintiff for dental care 7 several times and determined that tooth #19 could not be filled and needed to be 8 extracted. (Doc. 34 at 5-6.) Plaintiff refused the extraction several times and alleged that 9 on May 5, 2011, he asked Defendant about having a root canal through outside treatment 10 and that Defendant then asked him how long he would be here. Plaintiff further alleged 11 that when he said he has a life sentence, Defendant said that no outside care was 12 available. (Id. at 6.) 13 The Court observed that it is well-settled that a difference of medical opinion is 14 insufficient to establish deliberate indifference, and to prevail on a claim involving 15 choices between alternative courses of treatment, a prisoner must show that the course of 16 treatment the doctors chose was medically unacceptable in light of the circumstances and 17 that it was chosen in conscious disregard of an excessive risk to plaintiff’s health. (Id. at 18 7, citing Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 19 F.3d 330, 332 (9th Cir. 1996)). Plaintiff offered no admissible expert evidence that the 20 treatment option offered by Defendant was medically unacceptable under the 21 circumstances. 22 Likewise, Plaintiff offered no admissible evidence that Defendant was deliberately 23 indifferent for failing to prescribe an antibiotic to treat the tooth; Defendant attested that 24 an antibiotic is not indicated for a chronic, low-grade infection; rather, antibiotics are for 25 acute infections that are intended to be resolved by extraction or root canal treatment 26 within 10 days and that there are other considerations when a patient is HIV+ as is 27 Plaintiff. In addition, there was no evidence that the infected tooth caused a cyst or 28 spread of infection. (Id. at 7-8.) -2- 1 B. 2 “There are four grounds upon which a Rule 59(e) motion may be granted: (1) the 3 motion is necessary to correct manifest errors of law or fact upon which the judgment is 4 based; (2) the moving party presents newly discovered or previously unavailable 5 evidence; (3) the motion is necessary to prevent manifest injustice; or (4) there is an 6 intervening change in controlling law.” Turner v. Burlington Northern Santa Fe. R. Co., 7 338 F.3d 1058, 1063 (9th Cir. 2003). Discussion 8 Federal Rule of Civil Procedure 60(b) provides for reconsideration where one or 9 more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; 10 (2) newly discovered evidence which by due diligence could not have been discovered 11 before the court’s decision; (3) fraud by the adverse party; (4) voiding of the judgment; 12 (5) satisfaction of the judgment; or (6) any other reason justifying relief. Fed. R. Civ. P. 13 60(b); School Dist. No. 1J, Multnomah County v. ACandS Inc., 5 F.3d 1255, 1263 (9th 14 Cir. 1993). Subparagraph (6) requires a showing that the grounds justifying relief are 15 extraordinary; mere dissatisfaction with the court=s order or belief that the court is wrong 16 in its decision are not adequate grounds for relief. See Twentieth Century-Fox Film Corp. 17 v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). 18 In his Motion to Alter or Amend Judgment, Plaintiff argues that the Court should 19 view evidence in the light most favorable to the non-moving party and that he believes 20 favorable review was not considered. (Doc. 36 at 1.) He does not specify what evidence 21 he believes was not so viewed, but the Court specifically noted in its decision that “even 22 if Defendant stated that no outside care was available after Plaintiff disclosed his life 23 sentence, this is insufficient to create a triable issue of fact as to deliberately indifferent 24 treatment.” (Doc. 34 at 6.) Plaintiff offered no medical evidence that the care he 25 received was unacceptable under the circumstances. Plaintiff also asks for an opportunity 26 to testify and time to obtain a declaration from a “possible witness.” (Doc. 36 at 2.) Not 27 only is his offer vague, Plaintiff was specifically advised in writing of the evidentiary 28 -3- 1 requirements of a motion under Federal Rule of Civil Procedure 56 and failed to provide 2 the necessary evidence. (Doc. 24.) 3 4 The Court finds that Plaintiff offers nothing to justify altering or amending the judgment. 5 IT IS ORDERED that Plaintiff’s Motion to Alter or Amend the Judgment 6 (Doc. 36) is denied. The Clerk of Court is directed to accept no further filings in this 7 case except in connection with an appeal. 8 DATED this 21st day of October, 2013. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?