RIOS-SALINAS v. DE LASALLE et al

Filing 5

OPINION FILED. Signed by Judge Renee Marie Bumb on 6/19/12. (js)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
:
:
Plaintiff,
:
:
v.
:
:
DR. ABIGAIL LOPEZ DE LASALLE,:
et al.
,
:
:
Defendants.
:
:
ALEJANDRO RIOS-SALINAS,

Civil No. 11-2036 (RMB)
OPINION

APPEARANCES:
ALEJANDRO RIOS-SALINAS, Plaintiff pro se
Reg. No. # 23961-009
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
BUMB, District Judge
This matter comes before the Court upon pro se plaintiff,
Alejandro Rios-Salinas’ (“Plaintiff”) motion for reconsideration
of this Court’s October 28, 2011 Opinion and Order that dismissed
Plaintiff’s civil Complaint, with prejudice, in its entirety as
against all named defendants, pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and (iii) and §§ 1915A(b)(1) and (2).
Entry Nos. 2 and 3).

Plaintiff filed his motion for

reconsideration on or about November 15, 2011.
4).

(Docket

(Docket Entry No.

In order to entertain petitioner’s motion for
reconsideration, the Court will have the Clerk reopen the file.
This motion is decided without oral argument pursuant to Federal
Rule of Civil Procedure 78.

For the reasons stated below, the

motion will be denied, and the Clerk will be directed to re-close
the file.
I.

BACKGROUND

Plaintiff brought a civil complaint pursuant to Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), against the following defendants, Dr. Abigail Lopez
de Lasalle; Dr. Williams; Lynn Johnson, ARNP; and Mr. Eichel,
Acting Health Services Administrator at the FCI Fort Dix (West)
Health Services Unit (“HSU”), alleging a violation of his Eighth
Amendment right against cruel and unusual punishment.

In his

Complaint, Plaintiff alleged that, on February 11, 2010, he
slipped and fell on ice at FCI Fort Dix, shattering his patella.
An emergency medical technician (“EMT”), Andrew Ackley, responded
to the medical call where Plaintiff had fallen to provide
emergency assistance.

Ackley observed that Plaintiff was in

“very bad” pain (“10 on a pain scale”), and that there was an
“obvious deformity to the left knee.”

With assistance, Plaintiff

was lifted to a “leap” while traction was held on Plaintiff’s
leg, and Plaintiff was taken to the HSU for examination.
(Plaintiff’s Attachment to Complaint, “Bureau of Prisons Health

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Services Clinical Encounter” report, 3 pages, at Docket entry no.
1-3).
Plaintiff was examined by Dr. De Lasalle at the HSU urgent
care room.

The patella was noted to “be dislocated approximately

2 inches onto the head of the femur.”
discoloration in the affected area.

There was swelling and

Plaintiff’s knee was

immobilized and ice was placed on the knee to reduce swelling.
The on-call orthopedic surgeon was called, Dr. Williams, who
advised that he would examine Plaintiff the next day and that
Plaintiff’s knee should be immobilized in a straight position.
Plaintiff was prescribed Tylenol with codeine for the pain.
(Id.).
Plaintiff was examined by Dr. Williams the next day, on
February 12, 2010.
the patella.

An x-ray was performed showing a fracture of

Dr. Williams scheduled Plaintiff for surgery on

February 17, 2010.

FCI Fort Dix Warden Donna Zickefoose

confirms, in her June 1, 2010 response to Plaintiff’s BP-9
Administrative Remedy, that surgery was performed without
complications on February 17, 2010, and Plaintiff was discharged
back to FCI Fort Dix.

Follow-up care and re-evaluations were

performed by Dr. Williams on March 25, 2010 and April 29, 2010,
and it was noted that Plaintiff was healing well with continuing
strengthening exercises.

(Plaintiff’s Exhibit # 7 to the

Complaint, at Docket entry no. 1-3 pg. 15).

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In his Complaint, Plaintiff complained that the delay in
medical treatment (i.e., 6 days waiting for surgery while in
severe pain with only Tylenol w/ codeine prescribed) and the
provision of a “dilapidated” wheelchair constitutes a denial of
medical care in violation of his Eighth Amendment right against
cruel and unusual punishment.

(Compl., ¶ 6 and Plaintiff’s

attached statement at Docket entry no. 1-3, pg. 2).

He sought

compensatory and punitive damages in excess of $ 1 million.
(Compl., ¶ 7).
In screening the Complaint as required under 28 U.S.C. §§
1915(e)(2)(B) and 1915A, this Court determined that Plaintiff’s
Complaint failed to state an Eighth Amendment claim of
denial/delay of medical care because Plaintiff could not show
deliberate indifference by the defendants.

The Court reiterates

its ruling as follows:
Plaintiff generally asserts that defendants violated his
Eighth Amendment right to adequate medical care by denying
and/or delaying medical treatment. The Eighth Amendment
proscription against cruel and unusual punishment requires
that prison officials provide inmates with adequate medical
care. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); Rouse
v. Plantier, 182 F.3d 192 (3d Cir. 1999). In order to set
forth a cognizable claim for a violation of his right to
adequate medical care, an inmate must allege: (1) a serious
medical need; and (2) behavior on the part of prison
officials that constitutes deliberate indifference to that
need. Estelle, 429 U.S. at 106; Natale v. Camden County
Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference
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to medical needs amounts to an Eighth Amendment violation
only if those needs are ‘serious.’” Hudson v. McMillian,
503 U.S. 1, 9 (1992). The Third Circuit has defined a
serious medical need as: (1) “one that has been diagnosed by
a physician as requiring treatment;” (2) “one that is so
obvious that a lay person would recognize the necessity for
a doctor’s attention;” or (3) one for which “the denial of
treatment would result in the unnecessary and wanton
infliction of pain” or “a life-long handicap or permanent
loss.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir.
2003)(internal quotations and citations omitted); see also
Monmouth County Correctional Institutional Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486
U.S. 1006 (1988).
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate
indifference to his serious medical need. See Natale, 318
F.3d at 582 (finding deliberate indifference requires proof
that the official knew of and disregarded an excessive risk
to inmate health or safety). “Deliberate indifference” is
more than mere malpractice or negligence; it is a state of
mind equivalent to reckless disregard of a known risk of
harm. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994).
Furthermore, a prisoner’s subjective dissatisfaction with
his medical care does not in itself indicate deliberate
indifference. Andrews v. Camden County, 95 F. Supp.2d 217,
228 (D.N.J. 2000); Peterson v. Davis, 551 F. Supp. 137, 145
(D. Md. 1982), aff’d, 729 F.2d 1453 (4th Cir. 1984).
Similarly, “mere disagreements over medical judgment do not
state Eighth Amendment claims.” White v. Napoleon, 897 F.2d
103, 110 (3d Cir. 1990). “Courts will disavow any attempt
to second-guess the propriety or adequacy of a particular
course of treatment ... [which] remains a question of sound
professional judgment.” Inmates of Allegheny County Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal quotation
and citation omitted). Even if a doctor’s judgment
concerning the proper course of a prisoner’s treatment
ultimately is shown to be mistaken, at most what would be
proved is medical malpractice and not an Eighth Amendment
violation. Estelle, 429 U.S. at 105-06; White, 897 F.3d at
110.
The Third Circuit has found deliberate indifference where a
prison official: (1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2)
delays necessary medical treatment for non-medical reasons;
or (3) prevents a prisoner from receiving needed or
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recommended treatment. See Rouse, 182 F.3d at 197. The
court also has held that needless suffering resulting from
the denial of simple medical care, which does not serve any
penological purpose, violates the Eighth Amendment.
Atkinson, 316 F.3d at 266. See also Monmouth County
Correctional Institutional Inmates, 834 F.2d at 346
(“deliberate indifference is demonstrated ‘[w]hen ... prison
authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a
physician capable of evaluating the need for such
treatment”); Durmer v. O’Carroll, 991 F.2d 64 (3d Cir.
1993); White v. Napoleon, 897 F.2d 103 (3d Cir. 1990).
Here, Plaintiff’s injuries sustained on February 11, 2010,
namely, a fractured patella, would satisfy the first prong,
the objective prong (serious medical need), under Estelle to
support an Eighth Amendment violation. However, the
allegations and the medical records attached to the
Complaint, fail to support the second, subjective prong
(deliberate indifference), necessary to state an actionable
Eighth Amendment claim.
The record provided by Plaintiff shows that Plaintiff
received immediate medical treatment and that his
recommended surgery was scheduled six days later. Rather,
Plaintiff’s allegations are premised on the fact that he was
prescribed only Tylenol with codeine for his pain, which
Plaintiff contends was not sufficient for the level of pain
he was experiencing. He also complains that he was given a
“dilapidated” wheelchair during this time, but the record
shows that it was serviceable for the short distances that
Plaintiff had to travel. Further, Plaintiff seems to argue
that a six-day wait for surgery while he was in pain was too
long.
Thus, at best, Plaintiff’s allegations show that he simply
disagreed with the level of medical care he received at the
time, and/or that he was dissatisfied with his medical
treatment. As stated above, “mere disagreements over
medical judgment do not state Eighth Amendment claims.”
White, 897 F.2d at 110. Such allegations sound in medical
negligence, which is not actionable under the Eighth
Amendment as a claim of a constitutional deprivation. See
Farmer, 511 U.S. at 837-38. Accordingly, the Complaint
should be dismissed for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).
(October 28, 2011 Opinion, pp. 10-14, Docket entry no. 2).
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In a motion for reconsideration dated November 15, 2011
(Docket entry no. 4), Plaintiff disagrees with the Court’s
assessment of deliberate indifference.

He states that lying in

bed “for six (6) days with his shattered knee cap half way up his
leg is more than enough proof for a finding of deliberate
indifference.”

Plaintiff alleges now that he was not given

anything for swelling and pain for these six days.

But the facts

as alleged in his initial Complaint contradict his argument for
reconsideration.

In his Complaint and records attached thereto,

it shows that Plaintiff was given ice to reduce swelling, a
prescription Tylenol with codeine for the pain, and a serviceable
wheelchair.
II.

ANALYSIS

Motions for reconsideration are not expressly recognized in
the Federal Rules of Civil Procedure.

United States v.

Compaction Sys. Corp., 88 F. Supp.2d 339, 345 (D.N.J. 1999).
Generally, a motion for reconsideration is treated as a motion to
alter or amend judgment under Fed.R.Civ.P. 59(e), or as a motion
for relief from judgment or order under Fed.R.Civ.P. 60(b).

Id.

In the District of New Jersey, Local Civil Rule 7.1(i) governs
motions for reconsideration.

Bowers v. Nat’l. Collegiate

Athletics Ass’n., 130 F. Supp.2d 610, 612 (D.N.J. 2001).
Local Civil Rule 7.1(i) permits a party to seek
reconsideration by the Court of matters “which [it] believes the

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Court has overlooked” when it ruled on the motion.

L. Civ. R.

7.1(i); see NL Industries, Inc. v. Commercial Union Insurance,
935 F. Supp. 513, 515 (D.N.J. 1996).

The standard for reargument

is high and reconsideration is to be granted only sparingly.
United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994).

See
The

movant has the burden of demonstrating either: “(1) an
intervening change in the controlling law; (2) the availability
of new evidence that was not available when the court [issued its
order]; or (3) the need to correct a clear error of law or fact
or to prevent manifest injustice.”

Max’s Seafood Café v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)(citing N. River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
The Court will grant a motion for reconsideration only where its
prior decision has overlooked a factual or legal issue that may
alter the disposition of the matter.

Compaction Sys. Corp., 88

F. Supp.2d at 345; see also L.Civ.R. 7.1(i); Dunn v. Reed Group,
2010 U.S. Dist. LEXIS 2438 (D.N.J. Jan. 13, 2010)(L.Civ.R. 7.1(i)
creates a specific procedure by which a party may ask the court
to take a second look at any decision “upon a showing that
dispositive factual matters or controlling decisions of law were
overlooked by the court in reaching its prior decision”).
word ‘overlooked’ is the operative term in the Rule.”

“The

Bowers,

130 F. Supp.2d at 612 (citation omitted); see also Compaction
Sys. Corp., 88 F. Supp.2d at 345.

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Ordinarily, a motion for reconsideration may address only
those matters of fact or issues of law which were presented to,
but not considered by, the court in the course of making the
decision at issue.

See SPIRG v. Monsanto Co., 727 F. Supp. 876,

878 (D.N.J.), aff’d, 891 F.2d 283 (3d Cir. 1989).

Thus,

reconsideration is not to be used as a means of expanding the
record to include matters not originally before the court.
Bowers, 130 F. Supp.2d at 613; Resorts Int’l. v. Greate Bay Hotel
and Casino, Inc., 830 F. Supp. 826, 831 & n.3 (D.N.J. 1992);
Egloff v. New Jersey Air National Guard, 684 F. Supp. 1275, 1279
(D.N.J. 1988).

Absent unusual circumstances, a court should

reject new evidence which was not presented when the court made
the contested decision.
n.3.

See Resorts Int’l, 830 F. Supp. at 831

A party seeking to introduce new evidence on

reconsideration bears the burden of first demonstrating that
evidence was unavailable or unknown at the time of the original
hearing.

See Levinson v. Regal Ware, Inc., Civ. No. 89-1298,

1989 WL 205724 at *3 (D.N.J. Dec. 1, 1989).
Moreover, L.Civ.R. 7.1(i) does not allow parties to restate
arguments which the court has already considered.
Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990).

See G-69 v.

Thus, a difference

of opinion with the court’s decision should be dealt with through
the normal appellate process.

Bowers, 130 F. Supp.2d at 612

(citations omitted); Florham Park Chevron, Inc. v. Chevron

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U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988); see also
Chicosky v. Presbyterian Medical Ctr., 979 F. Supp. 316, 318
(D.N.J. 1997); NL Industries, Inc. v. Commercial Union Ins. Co.,
935 F. Supp. 513, 516 (D.N.J. 1996) (“Reconsideration motions ...
may not be used to re-litigate old matters, or to raise arguments
or present evidence that could have been raised prior to the
entry of judgment.”).

In other words, “[a] motion for

reconsideration should not provide the parties with an
opportunity for a second bite at the apple.”

Tishcio v. Bontex,

Inc., 16 F. Supp.2d 511, 533 (D.N.J. 1998)(citation omitted).
Here, Plaintiff fails to allege that this Court actually
“overlooked” a factual or legal issue that may alter the
disposition of the matter, which is necessary for the Court to
entertain the motion for reconsideration.

Instead, Plaintiff now

argues in direct contradiction to his initial Complaint and the
prison medical records he attached to his Complaint, that he did
not receive anything for pain and swelling for six days.
These new and questionable allegations are not enough to
overcome the threshold requirement for granting a motion for
reconsideration.

Plaintiff simply has not presented the Court

with changes in controlling law, factual issues that were
overlooked, newly discovered evidence, or a clear error of law or
fact that would necessitate a different ruling in order to
prevent a manifest injustice.

Plaintiff’s only recourse, if he

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disagrees with this Court’s decision, should be via the normal
appellate process.

He may not use a motion for reconsideration

to re-litigate a matter that has been thoroughly adjudicated by
this Court.
III. CONCLUSION
Therefore, for the reasons expressed above, the Clerk will
be directed to reopen this file for review of Plaintiff’s motion
for reconsideration, and the motion will be denied for lack of
merit.

An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: June 19, 2012

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