James v. State of Nebraska et al

Filing 116

MEMORANDUM AND ORDER - Defendants' motion to alter or amend judgment (Filing No. 110 ) is denied. A scheduling conference to establish an amended progression order is scheduled for: Monday, November 28, 2011, at 8:15 a.m. in the chambers of the undersigned. The parties may participate by telephone by notifying Judge Strom's office prior to that date. Ordered by Senior Judge Lyle E. Strom. (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ELAINE JAMES, M.D.,

)
)
Plaintiff,
)
)
v.
)
)
THE STATE OF NEBRASKA;
)
NEBRASKA BOARD OF MEDICINE & )
SURGERY; NEBRASKA DEPARTMENT )
OF HEALTH AND HUMAN SERVICES, )
DIVISION OF PUBLIC HEALTH,
)
an agency in the State of
)
Nebraska,
)
)
Defendants.
)
______________________________)

8:09CV112

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motion
to alter or amend judgment pursuant to Federal Rule of Civil
Procedure 59(e) (Filing No. 110).

Plaintiff Elaine James, M.D.

(“Dr. James”) originally brought this action asserting due
process and equal protection violations pursuant to 42 U.S.C.
§ 1983, violations of the American Disabilities Act (“ADA”), and
a state law defamation claim.

On May 10, 2011, both Dr. James

and the defendants filed motions for summary judgment.1

As a

result of the Court’s ruling on the cross motions for summary
judgment, only the ADA claim remains (Filing No. 109).

Since Dr.

James brought the ADA claim against public entities the State of
Nebraska, the Nebraska Board of Medicine and Surgery, and the

1

The deadline for filing a motion for summary judgment in
this action has passed. See Filing No. 82, at 2.

Nebraska Department of Health and Human Services, those public
entities are the only remaining defendants.
Filing No. 1, at 7.

See Complaint,

After having reviewed defendants’ present

motion, the briefs, and relevant case law, the Court will deny
defendants’ motion to alter or amend judgment.
I.

Federal Rules of Civil Procedure 59(e) and 60(b).
In its previous order addressing defendants’ motion for

summary judgment, the Court did enter a judgment to the extent
that it granted in part defendants’ motion for summary judgment.
However, with regard to the ADA claim, the Court denied
defendants’ motion for summary judgment, so the Court’s order
with regard to that claim was not a judgment at all.

In other

words, defendants’ motion to alter or amend judgment regarding
the ADA claim is “not directed to a final judgment, but rather to
a nonfinal order.

By its terms, only Rule 60(b) encompasses a

motion filed in response to an order.

Rule 59(e) motions are

motions to alter or amend a judgment, not any nonfinal order.”
Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999).
In Broadway, the Eighth Circuit wrote, “In their
‘motion for reconsideration,’ defendants did nothing more than
reargue, somewhat more fully, the merits of their claim . . . .
This is not the purpose of Rule 60(b).

It authorizes relief

based on certain enumerated circumstances (for example, fraud,

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changed conditions, and the like).
simple reargument on the merits.”

It is not a vehicle for
Broadway, 193 F.3d at 989-90.

“Under Rule 60(b) the movant must demonstrate exceptional
circumstances to justify relief.”

Brooks v. Ferguson-Florissant

Sch. Dist., 113 F.3d 903, 905 (8th Cir. 1997).

If this Court

were to construe defendants’ present motion as a Rule 60(b)
motion, the motion would be denied because it does not state any
grounds for relief delineated in the rule, nor does it adequately
establish “exceptional circumstances” or “any other reason that
justifies relief,” as described below.

See Fed. R. Civ. P.

60(b).
As another district court wrote in a similar situation,
“[Defendant] moves pursuant to Rule 59 of the Federal Rules of
Civil Procedure. . . . The present motion is inappropriate under
Rule 59 because the [defendant’s] earlier motion for summary
judgment was denied, hence no judgment was entered on which the
[defendant] could bring a motion to alter or amend.”

Moodie v.

Fed. Reserve Bank of N.Y., 835 F. Supp. 751, 752 (S.D.N.Y. 1993).
However, like that district court, “[W]e nevertheless address the
[Defendant’s] arguments to clarify our prior holding if that is
necessary.”
II.

Moodie, 835 F. Supp. at 752.

Motion to Alter or Amend Judgment.
“A district court has broad discretion in determining

whether to grant a motion to alter or amend judgment . . . .”
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Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.
1988).

A Rule 59(e) motion to alter or amend a judgment “does

not allow arguments or evidence to be presented after judgment
when the argument or evidence could have been presented earlier.”
McAllister v. Transamerica Occidental Life Ins. Co. 325 F.3d 997,
1003 (8th Cir. 2003) (citations omitted).

“A Rule 59(e) motion

‘cannot be used to raise arguments which could, and should, have
been made before the trial court entered final judgment.’”
Bannister v. Armontrout, 4 F.3d 1434, 1440 (8th Cir. 1993)
(quoting Woods v. City of Michigan City, 940 F.2d 275, 280 (7th
Cir. 1991)).
A.

“Qualified Person” and “Reasonable Modifications.”

“Although persons with disabilities are generally entitled to the
protection of [the ADA], a person who poses a significant risk to
others will not be ‘qualified,’ if reasonable modifications to
the public entity’s policies, practices, or procedures will not
eliminate that risk.”

28 C.F.R. pt. 35, App. A at 553 (2007).

Originally, defendants’ sole argument against Dr. James’ ADA
claim was that Dr. James was not a “qualified individual” under
the ADA (Filing No. 86).

As Dr. James points out, defendants had

admitted that Dr. James is a qualified individual in their answer
(Filing No. 57, at 6, para. 25).

In any event, in their summary

judgment brief, defendants argued, “[I]t is clear that the
Plaintiff is not a qualified individual under the ADA because she

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posed a potential significant risk to the health and safety of
others” (Filing No. 86, at 12).
Now, in their present motion, defendants argue in the
alternative, saying, “[E]ven if [Dr. James] was a qualified
person, Defendants modified their policy and practice and offered
Dr. James a reasonable accommodation through a probationary
license” (Filing No. 110, at 1).

Dr. James disagrees, stating

that defendants’ actions cannot be categorized as an
accommodation or modification, reasonable or otherwise, but
rather, “the Department took disciplinary action against the
Plaintiff based on her disability” (Filing No. 112, at 4).
Defendants liken their accommodation of Dr. James to that of the
state of South Carolina (Filing No. 111, at 4).

Dr. James

disagrees, finding that the actions of the two states “are miles
apart in intent, content and impact” (Filing No. 112, at 7).

The

Court finds that the characterization of defendants’ actions as
“reasonable modifications” or not is a question of fact not
amenable to resolution in summary judgment, which is granted only
if there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

P. 56(a).
B.

“Proof of Risk.”

In defendants’ brief in

opposition to plaintiff’s motion for summary judgment, Filing No.
97, at 2, defendants “agree” with Dr. James’ statement,

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During the application process for
both her Temporary Educational
Permit and the full license Dr.
James submitted letters to the
Department of Health and Human
Services licensing specialists from
her treating physicians, as well as
a colleague indicating that in
their opinion she was compliant
with her treatment, stable on her
medications, and had shown no
limitations to safely practice
medicine.
(Filing No. 94, para. 15).

In this Court’s previous order

granting in part and denying in part defendants’ motion for
summary judgment, the Court noted that defendants could have
merely agreed that the letters had been submitted.

Defendants

now aver that their agreement was limited to the fact that the
letters had been submitted (Filing No. 111, at 4).

The Court

sees no action to be taken on this basis.
C.

Damages.

The defendants assert an entirely new

argument in their motion to alter or amend, not present in their
motion for summary judgment:

“Since monetary damages is the only

relief remaining in this case, [Eighth Circuit case law] requires
a showing of intentional discrimination before compensatory
damages can be awarded and there has been no allegation of
intentional discrimination by any of the Defendants” (Filing No.
110, at 2).

The defendants do not explain why they were unable

to raise this issue in their motion for summary judgment.

The

Court finds that this argument “could, and should, have been made

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before the trial court entered” its order on summary judgment.
Bannister, 4 F.3d. At 1440.

Nevertheless, for clarity of the

issues, the Court will address this argument as well.
Defendants cite Meagley v. City of Little Rock,
639 F.3d 384 (8th Cir. 2011) for the proposition that “in order
to collect compensatory damages under Title II of the ADA, as
pled here, plaintiffs must show intentional discrimination
through deliberate indifference” (Filing No. 111, at 6).

As Dr.

James points out, “The deliberate indifference standard, unlike
some tests for intentional discrimination, ‘does not require a
showing of personal ill will or animosity toward the disabled
person,’ but rather can be ‘inferred from a defendant’s
deliberate indifference to the strong likelihood that pursuit of
its questioned policies will likely result in a violation of
federally protected rights.’”

Meagley, 639 F.3d at 389 (quoting

Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222,
1228-29 (10th Cir. 2009)).
In her complaint, Dr. James alleged, “Defendants denied
Plaintiff the benefits of their program by reason of her
disability and thus Defendants committed one or more ADA Title II
violations entitling Plaintiff to relief under Title II of the
ADA” (Filing No. 1, at 8).

The Court finds that this statement

is an allegation of “deliberate indifference” as defined by
Meagley.

In addition, the Court finds that the characterization

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of defendants’ actions as exhibiting “deliberate indifference” or
not is also a question of fact not amenable to resolution in
summary judgment.

Accordingly,

IT IS ORDERED:
1) Defendants’ motion to alter or amend judgment
(Filing No. 110) is denied.
2) A scheduling conference to establish an amended
progression order is scheduled for:
Monday, November 28, 2011, at 8:15 a.m.
in the chambers of the undersigned.

The parties may participate

by telephone by notifying Judge Strom’s office prior to that
date.
DATED this 15th day of November, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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