Lattimore v. Prisoner Health Services et al
OPINION AND ORDER denying 7 Motion for Reconsideration re 6 Judgment filed by Charles Lattimore. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CHARLES EDWARD LATTIMORE,
PRISON HEALTH SERVICES,
MICHIGAN DEPARTMENT OF
CORRECTIONS, LISA REEVES, M.D.,
BENSON MACKALL, BARBRA
FRAGER, LIADI SULEMAN, and SWIFT,
Case No. 11-11403
Honorable Patrick J. Duggan
OPINION AND ORDER
At a session of said Court, held in the U.S.
District Courthouse, Eastern District
of Michigan, on July 15, 2011.
THE HONORABLE PATRICK J. DUGGAN
U.S. DISTRICT COURT JUDGE
Charles Lattimore (“Plaintiff”), a state prisoner currently confined at the G. Robert
Cotton Correctional Facility in Jackson, Michigan filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983. On May 16, 2011, the Court dismissed his Complaint
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim
upon which relief may be granted. Presently before the Court is Plaintiff’s motion for
reconsideration, filed on June 13, 2011. For the reasons stated below, the Court denies
The Court grants a motion for reconsideration only if the movant demonstrates that
the Court and the parties have been misled by a palpable defect and that correcting the
defect will result in a different disposition of the case. E.D. Mich. LR 7.1(h)(3). A
“palpable defect” is one that is “obvious, clear, unmistakable, manifest, or plain.” Fleck v.
Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001). “[T]he court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled upon by
the court, either expressly or by reasonable implication.” E.D. Mich. LR 7.1(h)(3). The
purpose of a motion for reconsideration is not “to give an unhappy litigant one additional
chance to sway the judge.” Pakideh v. Ahadi, 99 F. Supp. 2d 805, 809 (E.D. Mich. 2000)
(quoting Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977)).
In his motion, Plaintiff argues that summary judgment is premature, as he has not yet
been afforded discovery. Plaintiff confuses summary dismissal pursuant to 28 U.S.C. §§
1915(e) and 1915A with a grant of summary judgment pursuant to Federal Rule of Civil
Procedure 56. In determining whether to dismiss a suit pursuant to §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1), the Court applies the standard used in evaluating a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Hill v. Lappin, 630 F.3d 468, 470-71 (6th
Cir. 2010). “[T]o survive scrutiny under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’” Id. at 471 (quoting Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct.
1937, 1949 (2009)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)). In deciding whether the plaintiff has set
forth a “plausible” claim, the court accepts the factual allegations in the complaint as true.
Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. Plaintiff therefore does not need evidence
to advance his claims at this stage; he simply must allege facts upon which the Court could
find the defendants liable for misconduct. Discovery is irrelevant to this inquiry.
Plaintiff has failed to state a plausible claim in this case. His allegations establish
that he has been evaluated by prison medical staff and that he received medication for his
condition. See Compl. ¶¶ 23, 45. Plaintiff is dissatisfied with the treatment of his pain,
but a difference of opinion as to the proper course of medical treatment does not constitute
cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 106-07, 97 S. Ct. 285,
292-93 (1976). Thus, Plaintiff has failed to state a claim for relief under the Eighth
Amendment to the United States Constitution.
The Court has carefully reviewed Plaintiff’s arguments, but concludes that it did not
err in summarily dismissing the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). Because Plaintiff has made no showing of a palpable defect, his motion for
reconsideration must be denied.
IT IS ORDERED that Plaintiff’s motion for reconsideration is DENIED.
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Charles Lattimore, #711352
G. Robert Cotton Correctional Facility
3500 N. Elm Road
Jackson, MI 49201
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