Worley # 257008 v. Correctional Medical Services
Filing
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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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Glenn C. Worley,
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Plaintiff,
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No. CV 12-0440-PHX-RCB
vs.
ORDER
Correctional Medical Services, et al.,
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Defendants.
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Plaintiff Glenn Cornell Worley, an inmate confined by the Arizona Department of
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Corrections (ADC), filed this pro se civil rights action. (Doc. 8.) Defendant Fredrickson
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moved for summary judgment, and the Court granted the motion. (Doc. 34.) Plaintiff
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now moves to Alter or Amend the Judgment. (Doc. 36.)
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The Court will deny the motion.
I.
Motion to Alter or Amend Judgment
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A.
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Plaintiff’s sole claim was for violation of his Eighth Amendment right to dental
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care when Defendant, Dr. Fredrickson, D.D.S., refused to perform a root canal on
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Plaintiff, insisting instead that Defendant extract the tooth. (Doc. 8.) Plaintiff claimed
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that as a result of Defendant’s actions, Plaintiff developed a cyst that burst and then
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spread an infection to his tongue and inner cheek. Another dentist provided Plaintiff with
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a root canal several months later. (Id.)
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Background
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The Court granted summary judgment to Defendant, finding that Plaintiff failed to
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create a triable issue of fact as to deliberate indifference for refusing to perform a root
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canal on tooth #19 or to provide antibiotics. (Doc. 34 at 4.) The Court also found that
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Plaintiff failed to provide admissible evidence that he had a ruptured cyst that was caused
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by infection in tooth #19. (Id.)
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The Court found that it was undisputed that Defendant saw Plaintiff for dental care
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several times and determined that tooth #19 could not be filled and needed to be
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extracted. (Doc. 34 at 5-6.) Plaintiff refused the extraction several times and alleged that
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on May 5, 2011, he asked Defendant about having a root canal through outside treatment
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and that Defendant then asked him how long he would be here. Plaintiff further alleged
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that when he said he has a life sentence, Defendant said that no outside care was
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available. (Id. at 6.)
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The Court observed that it is well-settled that a difference of medical opinion is
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insufficient to establish deliberate indifference, and to prevail on a claim involving
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choices between alternative courses of treatment, a prisoner must show that the course of
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treatment the doctors chose was medically unacceptable in light of the circumstances and
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that it was chosen in conscious disregard of an excessive risk to plaintiff’s health. (Id. at
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7, citing Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90
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F.3d 330, 332 (9th Cir. 1996)). Plaintiff offered no admissible expert evidence that the
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treatment option offered by Defendant was medically unacceptable under the
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circumstances.
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Likewise, Plaintiff offered no admissible evidence that Defendant was deliberately
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indifferent for failing to prescribe an antibiotic to treat the tooth; Defendant attested that
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an antibiotic is not indicated for a chronic, low-grade infection; rather, antibiotics are for
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acute infections that are intended to be resolved by extraction or root canal treatment
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within 10 days and that there are other considerations when a patient is HIV+ as is
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Plaintiff. In addition, there was no evidence that the infected tooth caused a cyst or
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spread of infection. (Id. at 7-8.)
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B.
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“There are four grounds upon which a Rule 59(e) motion may be granted: (1) the
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motion is necessary to correct manifest errors of law or fact upon which the judgment is
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based; (2) the moving party presents newly discovered or previously unavailable
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evidence; (3) the motion is necessary to prevent manifest injustice; or (4) there is an
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intervening change in controlling law.” Turner v. Burlington Northern Santa Fe. R. Co.,
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338 F.3d 1058, 1063 (9th Cir. 2003).
Discussion
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Federal Rule of Civil Procedure 60(b) provides for reconsideration where one or
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more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect;
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(2) newly discovered evidence which by due diligence could not have been discovered
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before the court’s decision; (3) fraud by the adverse party; (4) voiding of the judgment;
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(5) satisfaction of the judgment; or (6) any other reason justifying relief. Fed. R. Civ. P.
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60(b); School Dist. No. 1J, Multnomah County v. ACandS Inc., 5 F.3d 1255, 1263 (9th
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Cir. 1993). Subparagraph (6) requires a showing that the grounds justifying relief are
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extraordinary; mere dissatisfaction with the court=s order or belief that the court is wrong
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in its decision are not adequate grounds for relief. See Twentieth Century-Fox Film Corp.
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v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).
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In his Motion to Alter or Amend Judgment, Plaintiff argues that the Court should
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view evidence in the light most favorable to the non-moving party and that he believes
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favorable review was not considered. (Doc. 36 at 1.) He does not specify what evidence
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he believes was not so viewed, but the Court specifically noted in its decision that “even
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if Defendant stated that no outside care was available after Plaintiff disclosed his life
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sentence, this is insufficient to create a triable issue of fact as to deliberately indifferent
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treatment.” (Doc. 34 at 6.) Plaintiff offered no medical evidence that the care he
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received was unacceptable under the circumstances. Plaintiff also asks for an opportunity
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to testify and time to obtain a declaration from a “possible witness.” (Doc. 36 at 2.) Not
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only is his offer vague, Plaintiff was specifically advised in writing of the evidentiary
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requirements of a motion under Federal Rule of Civil Procedure 56 and failed to provide
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the necessary evidence. (Doc. 24.)
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The Court finds that Plaintiff offers nothing to justify altering or amending the
judgment.
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IT IS ORDERED that Plaintiff’s Motion to Alter or Amend the Judgment
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(Doc. 36) is denied. The Clerk of Court is directed to accept no further filings in this
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case except in connection with an appeal.
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DATED this 21st day of October, 2013.
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