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)

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-