Brown v. Mohr et al

Filing 119

MEMORANDUM OPINION AND ORDER denying 117 Motion for Reconsideration. Signed by Judge James L Graham on 3/31/2015. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN S. BROWN,
Plaintiff,
v.
DIRECTOR MOHR, et al.,
Defendants.

Case No. 2: 13-cv-006
Judge Peter C. Economus
Magistrate Judge Terrence P. Kemp
MEMORANDUM OPINION AND ORDER

This is a prisoner civil rights case. This matter is before the Court for consideration of
Plaintiff Mr. Brown’s Motion for Reconsideration. (ECF No. 117.) Mr. Brown asks this Court to
reconsider its Order (ECF No. 113) adopting United States Magistrate Judge Terrence P. Kemp’s
Report and Recommendation (“R & R”) issued on February 23, 2015 (ECF No. 109). For the
reasons that follow, the Court DENIES Mr. Brown’s Motion for Reconsideration. (ECF No.
117.)
I.

Background
Mr. Brown, a prison inmate, brings this pro se civil rights action against numerous

Defendants. This case came before the Court by way of a transfer from the United States District
Court for Southern District of Ohio, Western Division. In the Western Division, Magistrate
Judge J. Gregory Wehrman issued a Report and Recommendation (“R & R”) dismissing some of
Mr. Brown’s original claims, and transferring other claims to the United States District Court for
Southern District of Ohio, Eastern Division. (ECF No. 12.)
Following the transfer, Mr. Brown filed a Second Amended Complaint in this Court.
(ECF No. 51.) In the Second Amended Complaint, Mr. Brown alleges the following: an Eighth
Amendment violation of his right to be free from cruel and unusual punishment under the
deliberate indifference standard for denial of medical treatment; retaliation for having taken legal

action and this includes being placed in a cell with Nazi’s and skinheads because he is Jewish;
denial of adequate kosher food; and many other claims.
On February 23, 2015 Magistrate Judge Kemp issued an R & R, addressing a number of
pending motions. (ECF No. 109.) Magistrate Judge Kemp recommended that Mr. Brown’s motion
for an order to protect his legal papers (ECF No. 64 as supplemented by ECF No. 72 and 73) be
denied as moot. Further, Magistrate Judge Kemp recommended that Mr. Brown’s motions for an
entry of default (ECF No. 78), to dismiss (ECF No. 79), for sanctions (ECF No. 90), and to
supplement (ECF No. 95 and 102) be denied, and that Mr. Brown’s motion to stay a decision on the
motion to dismiss (ECF No. 94) be denied as moot. Finally, Magistrate Judge Kemp recommended
that the Court decline to consider the issues raised in Mr. Brown’s motion for an order directing
defendants to debit his prison account for copies (ECF No. 82) and that this motion be removed from
this Court’s pending motions list.
On March 11, 2015, this Court issued an Order adopting the Magistrates R & R because no
party had objected to the R & R and the time period for filing objections had past. (ECF No. 113.) On
March12, 2015 Mr. Brown filed a motion for extension of time to file objections to the R & R. (ECF
No. 114.) The Court granted the motion to the extent Mr. Brown was given an opportunity to file a
motion for reconsideration of the Court’s Order adopting the R & R. (ECF No. 113.) On March 19,
2015, Mr. Brown filed a motion for reconsideration. (ECF No. 117.)

II.

Discussion
Although the Federal Rules of Civil Procedure do not explicitly address motions for

reconsideration of interlocutory orders, the authority for a district court to hear such motions is
found in both the common law and in Rule 54(b) of the Federal Rules of Civil Procedure.
Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed. Appx’ 949, 959 (6th Cir.2004).
Traditionally, courts will find justification for reconsidering interlocutory orders when there is
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(1) an intervening change of controlling law; (2) new evidence available; or, (3) a need to correct
a clear error or prevent manifest injustice. Id. at 959 (citing Reich v. Hall Holding Co., 990 F.
Supp. 955, 965 (N. D. Ohio 1998)). In this case, Mr. Brown does not seek reconsideration on
either of the first two grounds. Mr. Brown relies only on the third prong, contending that this
Court made a clear error in denying preliminary injunction.
“Manifest injustice” has been defined as “[a]n error in the trial court that is direct,
obvious, and observable.” Tenn. Prot. & Advocacy, Inc. v. Wells, 371 F.3d 342, 348 (6th
Cir.2004) (alteration in original) (quoting Black's Law Dictionary 974 (7th ed.1999)). In other
words, “a showing of manifest injustice requires that there exist a fundamental flaw in the court's
decision that without correction would lead to a result that is both inequitable and not in line with
applicable policy.” McDaniel v. Am. Gen. Fin. Servs., Inc., No. 04–2667 B, 2007 WL 2084277,
at *2 (W.D. Tenn. July 17, 2007) (quoting In re Bunting Bearings Corp., 321 B.R. 420, 423
(Bankr. N.D. Ohio 2004)).
The Court has reviewed Mr. Brown’s Motion (ECF No. 117), and finds no basis for
reconsidering its Order (ECF No. 113). In his motion, Mr. Brown argues that the Court should
allow him the opportunity to make objections to the R & R. (ECF No. 117.) Mr. Brown’s
argument is not well taken. The Court finds no obvious and observable error in its decision to
adopt Magistrate Jude Kemp’s R & R after the time to file objections had past. See United States
v. Jarnigan, No. 3:08-CR-7, 2008 WL 5248172, at *5 (E.D. Tenn. Dec. 17, 2008) (“The Court
notes that even if Defendant Jarnigan’s motion for reconsideration were granted and the Court
performed a de novo review the portions of the R & R to which he has objected as would be
required by 28 U.S.C. § 636(b)(1), the ultimate outcome would be no different.”).

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Mr. Brown also raises the same arguments he has previously made. Again, Mr. Brown
argues that Defendants provided inadequate medical care in violation of the Eighth Amendment
to the United States Constitution. Mr. Brown’s Eighth Amendment Claim for inadequate medical
care is insufficient. To establish an Eighth Amendment violation premised on inadequate
medical care, Mr. Brown must demonstrate that the Defendants acted with “deliberate
indifference to serious medical needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To rise to the level of an Eighth Amendment
violation, a prison official must “know of and disregard an excessive risk to inmate health or
safety; the official must both be aware of the facts from which the inference could be drawn that
a substantial risk of serious harms exists, and he must also draw the inference.” Farmer, 511
U.S. at 837-38. “Furthermore, a difference of opinion between a prisoner and a doctor over
diagnosis or treatment also fails to state an Eighth Amendment claim of deliberate indifference to
a serious medical need.” Brock v. Crall, 8 F. App’x 439, 440 (6th Cir. 2001) (citing Westlake v.
Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)).
Mr. Brown does not meet this burden. Mr. Brown simply contends that he received no
medical treatment. (ECF No. 117.) Mr. Brown, however, discusses a number of recent medical
operations that he has received. Clearly, Mr. Brown has received at least some medical
treatment. Therefore, the Court denies Mr. Brown’s Motion for Reconsideration (ECF No. 117)
III.

Conclusion
For the reasons discussed above, the Court hereby DENIES Mr. Brown’s Motion for

Reconsideration. (ECF No. 117.)
IT IS SO ORDERED.

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