Odoms v. Aranas et al

Filing 99

ORDER that Plaintiff's motion for reconsideration (ECF No. 95 ) is denied. Signed by Judge Miranda M. Du on 10/5/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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J. BENJAMIN ODOMS,

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Case No. 3:16-cv-00159-MMD-WGC
Plaintiff,

ORDER

v.
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ROMEO ARANAS, et al.,
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Defendants.
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I.

SUMMARY

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Plaintiff J. Benjamin Odoms is a prisoner in the care and custody of the Nevada

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Department of Corrections (“NDOC”) and seeks curative treatment for his infection with

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the hepatitis-C virus (“HCV”). Before the Court is Plaintiff’s motion for reconsideration

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(ECF No. 95) of the Court’s August 27, 2018 order (“Order”) (ECF No. 93) granting

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summary judgment in favor of Defendants. The Court has reviewed Defendants Karen

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Gedney and Marsha Johns’s response (ECF No. 96) as well as Plaintiff’s reply (ECF No.

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97). For the following reasons, the Court will deny Plaintiff’s motion for reconsideration.

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II.

LEGAL STANDARD

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A motion to reconsider must set forth “some valid reason why the court should

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reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to

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persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 2d

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1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if the Court “(1) is presented

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with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No.

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1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is

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not an avenue to re-litigate the same issues and arguments upon which the court already

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has ruled.” Brown v. Kinross Gold, U.S.A., 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005)

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(citation omitted).

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III.

DISCUSSION

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Plaintiff does not present a coherent argument in support of his request for

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reconsideration of the Order. Rather, Plaintiff primarily makes a number of factual

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allegations, including the following. Plaintiff has not been allowed to talk to the hernia

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specialist for two years. (ECF No. 95 at 2.) Plaintiff is forced to take pain pills that “destroy

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and hasten his d[e]mise (kidney and liver).” (Id.) Defendants do not treat Plaintiff’s low

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blood pressure and know he gets the chills. (Id. at 2-3.) Defendants do not know the type

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of HCV Plaintiff has. (Id. at 3.) Defendants’ decision to withhold direct-acting antiviral

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(“DAA”) drugs guarantees Plaintiff’s death, and the decision concerning Plaintiff’s health

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was a conscious one to cause Plaintiff’s death. (Id. at 3.) Defendants have not adequately

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tested Plaintiff’s liver function. (Id. at 3-4; ECF No. 97 at 2-3.)

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In addition to making these factual allegations, Plaintiff asserts that the Court may

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not make credibility determinations in connection with a motion for summary judgment

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and attaches to his motion a list of his medication and a copy of his second amended

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complaint. (ECF No. 95 at 4, 6-21.)

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Defendants focus on three aspects of Plaintiff’s motion in their response: (1)

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Plaintiff’s allegations regarding his hernia and pain medication; (2) Plaintiff’s allegation

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that Defendants’ decision not to treat Plaintiff with DAA drugs guarantees his death; and

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(3) Plaintiff’s assertion that the Court should not make credibility determinations in

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connection with a motion for summary judgment. (ECF No. 96 at 2.)

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Regarding the first point, Defendants argue that Plaintiff’s allegations regarding his

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hernia and pain medication have no bearing on the Court’s determination that

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Defendants’ decision to provide palliative care was not medically unacceptable under the

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circumstances. (Id.; see also ECF No. 93 at 4.) Plaintiff’s reply does not address this
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argument (see ECF No. 97), and the Court agrees with Defendants. Defendants’ decision

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to treat Plaintiff’s pain with medication is consistent with their decision to provide palliative

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care, and Plaintiff still has not produced any evidence to rebut Defendants’ assertion that

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providing DAA will harm him. (See ECF No. 95; ECF No. 97; ECF No. 93 at 5.) To the

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extent that Plaintiff’s allegations regarding pain medications give rise to an independent

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claim for violation of the Eighth Amendment, such a claim was not before the Court when

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it issued the Order.

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Regarding the second point, Defendants argue that the evidence before the Court

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showed that prescribing Plaintiff DAA treatment would cause more harm than good in

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light of his decompensated liver disease. (ECF No. 96 at 2.) Liberally construed, Plaintiff’s

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reply seems to argue that he should receive treatment under NDOC Medical Directive

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219 (“MD 219”) because his APRI1 score is 1.88 and the threshold for treatment is 1.77.

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(ECF No. 97 at 3-4.) The Court agrees with Defendants. Even if MD 219 suggests that

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Plaintiff should receive treatment, the evidence before the Court showed that prescribing

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DAA treatment to Plaintiff would cause him harm, and Plaintiff still has not produced any

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evidence to the contrary. (See ECF Nos. 95, 97.)

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Regarding the third point, Defendants argue that the Court did not make a

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credibility determination in the Order. (ECF No. 96 at 2.) Plaintiff does not address this

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argument in his reply (see ECF No. 97), and the Court agrees with Defendants. In the

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Order, the Court determined that Defendants provided evidence that Plaintiff’s desired

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course of treatment would harm Plaintiff and that Plaintiff failed to produce any evidence

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to the contrary. (See ECF No. 93 at 5 (“Plaintiff has provided no evidence to rebut

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Defendants’ assertion that providing DAA will harm him, nor does Plaintiff dispute that he

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has been provided palliative care.”).) Because Plaintiff still has not produced any such

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evidence, the Court declines to reverse the Order.

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1Aspartate

Aminotransferase Platelet Ratio Index. (See ECF No. 73 at 2.)
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IV.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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motion before the Court.

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It is therefore ordered that Plaintiff’s motion for reconsideration (ECF No. 95) is
denied.
DATED THIS 5th day of October 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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