OWENS v. LOPEZ DE LASALLE et al

Filing 5

OPINION FILED. Signed by Judge Robert B. Kugler on 8/27/13. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DOUGLAS OWENS,
Plaintiff,
v.
ABIGAIL LOPEZ DE LASALLE,
et al.,
Defendants.

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Civil Action No. 12-3365 (RBK)

OPINION

APPEARANCES:
DOUGLAS OWENS, Plaintiff pro se
#51716-056
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
KUGLER, District Judge
Plaintiff Douglas Owens (“Plaintiff”) filed a motion for
reconsideration (Docket # 4) of this Court’s January 8, 2013
Opinion and Order (Dkt. ## 2, 3), in which the Court dismissed
Plaintiff’s Complaint, with prejudice, for failure to state a
claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).

The Court directs the Clerk of the Court to re-

open this case to allow for review of Plaintiff’s motion.
the reasons set forth below, the Court concludes that
Plaintiff’s motion for reconsideration should be denied.

For

I.

BACKGROUND

Plaintiff filed a Complaint on June 5, 2012, pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), alleging that Defendants, Abigail Lopez De
LaSalle, M.D., Warden Donna Zickefoose, and John Does 1-100,
violated his rights under the Eighth Amendment by denying him
proper medical care for an injury Plaintiff sustained on June
15, 2010.

This Court issued an Opinion and Order on January 8,

2013, dismissing the Complaint, in its entirety, for failure to
state a cognizable claim of a constitutional deprivation.

(Dkt.

##, 2, 3.)
In particular, this Court found that Plaintiff failed to
demonstrate deliberate indifference necessary to support an
Eighth Amendment denial of medical care claim.

Namely, the

Court noted that Plaintiff’s medical records, provided with his
Complaint, showed that Plaintiff had been extensively treated
for his staph infection and fracture.

This Court further

stated:
At best, Plaintiff disagrees with the treatment course set
forth by the medical defendants, and alleges negligence.
For instance, Plaintiff complains that his cast was put on
his leg too tightly, and that the fracture initially was
mis-diagnosed as a minor injury. He also complains that he
was discharged from the hospital too early, but offers no
evidence that the discharge was prompted by any named
defendant with deliberate disregard for Plaintiff’s health.
As noted above, such claims of disagreement in treatment,
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or negligence, or medical malpractice, do not rise to the
level of an Eighth Amendment violation.
As the Third
Circuit has noted “mere disagreements over medical judgment
do not state Eighth Amendment claims” because there may be
“several acceptable ways to treat an illness.”
White [v.
Napoleon], 897 F.2d [103] at 110 [(3d Cir. 1990)]; see also
Hodge v. United States Dep’t of Justice, 372 F. App’x 264,
268 (3d Cir. 2010) (“disagreements ... among physicians,
concerning the course of medical treatment ... do not
support a claim for a violation of the Eighth Amendment.”);
Ham v. Greer, 269 F. App’x 149, 151 (3d Cir. 2008) (“Ham’s
primary dispute, in essence, is that he did not receive the
kind or quality of treatment that he would have preferred.
This simply does not rise to the level of a violation of a
constitutionally protected right.”).
Plaintiff was given crutches, a wheelchair and medication
to help with pain. He was seen regularly as prescribed for
periodic examination and follow-up care, and did not
request or report to Sick Call on any occasion for issues
with pain.
Medical staff and his Orthopedic Surgeon also
reminded Plaintiff to keep weight off his right leg, which
Plaintiff apparently chose to ignore at his detriment.
Thus, while this Court sympathizes with Plaintiffs medical
condition and alleged deformity, it is clear that the
defendants were not deliberately indifferent to his medical
needs to support an Eighth Amendment violation.
(Dkt. 2 at 14-15.)
On January 31, 2013, this Court received Plaintiff’s motion
for reconsideration of the January 8, 2013 Opinion and Order
dismissing the Complaint.

The Plaintiff argues that Dr. Lopez

De Lasalle should not be dismissed from this lawsuit because, as
Clinical Director, she was “directly responsible to ensure ‘the
care provided [to inmates in outside hospitals] relates to the
diagnoses on admission and any complications that develop.’”
(Dkt. # 4, Plaintiff’s Motion at ¶ A.)
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He contends Dr. Lopez De

Lasalle authorized Plaintiff’s premature discharge from the
hospital before his treatment was concluded and before a
supporting cast of his leg was applied.

Thus, Plaintiff claims,

had he not been discharged from the hospital before the
supporting cast was applied, he would not have suffered a
second, more severe fracture of his leg.

(Id.)

Plaintiff also argues that the Complaint should not have
been dismissed as against Warden Zickefoose because she rendered
a medical opinion that she was not qualified to make, namely,
that Plaintiff had “been properly treated for [his] fracture.”
(Id., at B.)

Further, while Plaintiff acknowledges that he did

not use his crutches all the time, as stated by Zickefoose,
Plaintiff contends that he did not have crutches available to
him that morning after he was returned to prison from the
hospital when he suffered the second fracture.

(Id., at B.4.)

Finally, Plaintiff states that he was not placed in a short leg
cast until five weeks after it had been recommended at the
hospital, and that the cast was not removed for a long period of
time after the initial five to eight week recommended period,
which caused additional pain and unnecessary ulcerations.
at B.4.)

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(Id.

II.

DISCUSSION

Plaintiff asks the Court to reconsider dismissal of the
Complaint.

Local Civil Rule 7.1(i) 1 permits a party to seek

reconsideration by the Court of matters “which [it] believes the
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 word ‘overlooked’ is

the dominant term, meaning that except in cases where there is a
need to correct a clear error or manifest injustice, ‘[o]nly
dispositive factual matters and controlling decisions of law
which were presented to the court but not considered on the
original motion may be the subject of a motion for
reconsideration.”

Leja v. Schmidt Mfg., Inc., 743 F.Supp.2d

444, 456 (D.N.J. 2010) (citation omitted); Bowers v. Nat’l
Collegiate Athletic Ass’n, 130 F. Supp.2d 610, 612 (D.N.J. 2001)
(citation omitted).
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While motions for reconsideration are not expressly permitted by
the Federal Rules of Civil Procedure, motions for
reconsideration are considered motions to amend or alter a
judgment under Fed.R.Civ.P. 59(e) or a motion for relief from
judgment under Fed.R.Civ.P. 60(b). Wisowaty v. Port Authority
Trans-Hudson Corp., No. 11-2722 (JLL), 2013 WL 103385, *1
(D.N.J. Jan. 8, 2013) (citing U.S. v. Compaction Sys. Corp., 88
F.Supp.2d 339, 345 (D.N.J. 1999)). For the purposes of this
analysis, Rule 7.1(i) is essentially the same as Fed.R.Civ.P.
59(e). See Allah v. Bartkowski, No. 11-3153 (MAS), 2013 WL
3930121, *2 (D.N.J. Jul. 30, 2013); Database Am., Inc. v.
Bellsouth Advert. & Publ’g Corp., 825 F. Supp. 1216, 1220
(D.N.J. 1993).
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It is well settled that a motion for reconsideration is an
extraordinary remedy and should be granted “very sparingly.”
See Caver v. City of Trenton, 420 F.3d 243, 258 (3d Cir. 2005);
Fellenz v. Lombard Inv. Corp., 400 F. Supp.2d 681, 683 (D.N.J.
2005); Tehan v. Disab. Mgmt. Servs., Inc., 111 F.Supp.2d 542,
549 (D.N.J. 2000)

(citation omitted).

The scope of a motion

for reconsideration is “extremely limited” and may not “be used
as an opportunity to relitigate the case.”
664 F.3d 397, 415 (3d Cir. 2011).

Blystone v. Horn,

Thus, a movant seeking

reconsideration must show: (1) an intervening change in
controlling law; (2) the availability of new evidence that was
previously unavailable; or (3) the need to correct a clear error
of law or fact or to prevent manifest injustice.

See Lazardis

v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010); Max's Seafood Café
ex rel. Lou–Ann, Inc. 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)); Allah v. Ricci, No. 08-1753
(JAP), 2012 WL 4341207, *1 (D.N.J. Sep. 21 2012).
The moving party seeking reconsideration may not
“relitigate old matters” or “raise argument or present evidence
that could have been raised prior to the entry of judgment.”
Boretsky v. Governor of N.J., 433 F. App’x 73, 78 (3d Cir. 2011)
(quoting Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
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(11th Cir. 2009)); Dunkley v. Mellon Investor Servs., 378 F.
App’x 169, 172 (3d Cir. 2010); Bowers, 130 F.Supp.2d at 613
(reconsideration is not a means to expand the record to include
matters not originally before the court).

“This prohibition

includes new arguments that were previously available, but not
pressed.”

Wilchombe, 555 F.3d at 957 (citation omitted)

(internal quotation marks omitted); see also Summerfield v.
Equifax Info. Servs. LLC, 264 F.R.D. 133, 145 (D.N.J. 2009) (“A
motion for reconsideration will [ ] fail if the moving party
raises argument[s] ... that could have been raised ... before
the original decision was reached.”)
Consequently, 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).

In

other words, “[a] motion for reconsideration should not provide
the parties with an opportunity for a second bite at the apple.”
Clark v. Prudential Ins. Co. of America, --- F. Supp.2d ----,
2013 WL 1694451, * 2 (D.N.J. Apr. 18, 2013) (quoting Tishcio v.
Bontex, Inc., 16 F. Supp.2d 511, 533 (D.N.J. 1998).

With this

framework in mind, the Court finds that reconsideration of its
prior ruling is not warranted.
In reviewing Plaintiff’s motion for reconsideration
overall, the Court finds that Plaintiff has not demonstrated
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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.
Rather, Plaintiff simply reiterates the facts and law cited in
his Complaint.

Indeed, these very same allegations concerning

Plaintiff’s premature discharge from the hospital and the length
of time for treatment were carefully detailed in the Court’s
January 8, 2013 Opinion.

Consequently, Plaintiff fails to

present any new facts or evidence in his motion that would
prompt a different outcome.
He also fails to cite any legal issue that was overlooked
by this Court, changes in controlling law, newly discovered
evidence, or a clear error of law or fact that would necessitate
a different ruling in order to prevent a manifest injustice.
Instead, Plaintiff simply disagrees with this Court’s prior
decision.

Consequently, Plaintiff cannot satisfy the threshold

for granting a motion for reconsideration here.

His only

recourse, if he 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.

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III.

CONCLUSION

For the reasons set forth above, Plaintiff’s motion for
reconsideration (Dkt. # 10) will be denied.

An appropriate

order follows.

s/Robert B. Kugler _________
ROBERT B. KUGLER
United States District Judge
Dated: August 27, 2013

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