Burton v. Kakani et al

Filing 33

ORDER denying 24 Motion for Reconsideration. Signed by District Judge Marianne O Battani. (BThe)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION KAMAL BURTON, Plaintiff, Case No. 09-10893 v. HON. MARIANNE O. BATTANI KAKANI, a physician assistant, and ANIL S. PRASAD, M.D., Defendant. _____________________________________/ OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION I. INTRODUCTION Before the Court is Defendants' Motion for Reconsideration of the Court's September 23, 2009 Opinion and Order. (Doc. 24; see doc. 22). In their motion, Defendants contend that the Court erred by concluding that Plaintiff had made a valid state law claim of criminal recklessness. Defendants also reiterated their prior claim that this count of Plaintiff's complaint was only a deliberate indifference claim. Pursuant to E.D. Mich. LR 7.1(g)(3), a movant may obtain relief through a motion for reconsideration if it demonstrates that (1) the Court and the parties have been misled by a palpable defect, and (2) the correction of that defect will result in a different disposition of the case. A "palpable defect" is an error "which is obvious, clear, unmistakable, manifest, or plain." Fleck v. Titan Tire Corp., 177 F. Supp.2d 605, 624 (E.D. Mich. 2001).

As an initial matter, the Court's prior opinion did not conclude that Plaintiff's complaint set forth a valid claim of criminal recklessness. Instead, the Court merely concluded that the allegations contained in Plaintiff's complaint ­ which are to be construed liberally due to Plaintiff's pro se status ­ may be sufficient to make out a state law tort claim. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Thus, dismissal at this stage of the litigation would be premature. As the Court has not held that Plaintiff made out a valid claim of criminal recklessness, Defendant's arguments are inapposite. To the extent Defendants reiterate their prior contention that this claim is only an additional deliberate indifference claim, the Court has already considered and rejected this argument. See Database America, Inc. v. Bellsouth Adver. & Publ'g Corp., 825 F.Supp. 1216, 1219-20 (D.N.J. 1993) ("A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." (quotations omitted)). Accordingly, the Court DENIES Defendants' Motion for Reconsideration. IT IS SO ORDERED. s/Marianne O. Battani MARIANNE O. BATTANI UNITED STATES DISTRICT JUDGE DATED: February 2, 2010 CERTIFICATE OF SERVICE Copies of this Order were served upon Plaintiff and counsel of record on this date by ordinary mail and/or electronic filing. s/Bernadette M. Thebolt DEPUTY CLERK

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