Chimenti v. Kimber, et al
Filing
355
ORDER denying 339 Motion for Reconsideration ; dismissing 345 Motion for Summary Judgment. IT IS HEREBY ORDERED THAT: 1. Derfendant Horn's motion (Doc. 339) for reconsideration is DENIED. 2. Defendant Horn's third summary judgment motion (Doc. 345) is DISMISSED AS UNTIMELY. Signed by Honorable A. Richard Caputo on 4/18/12 (jam, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SALVATORE CHIMENTI
Plaintiff,
v.
ROGER KIMBER, et al.,
Defendants
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CIVIL NO. 3:CV-01-0273
(Judge Caputo)
MEMORANDUM ORDER
Background
Salvatore Chimenti, an inmate presently confined at the Smithfield State
Correctional Institution, Huntingdon, Pennsylvania initiated this civil rights action pursuant
to 42 U.S.C. § 1983 regarding his medical treatment for Hepatitis C while incarcerated at the
State Correctional Institution, Huntingdon, Pennsylvania (SCI-Huntingdon). It is alleged that
there was a delay in providing Plaintiff with an aggressive form of care, Rebetron.1
A March 15, 2002 Memorandum and Order by Judge Vanaskie of this Court granted
motions to dismiss filed by the Wexford Defendants, Roger Kimber M.D., and the
Commonwealth Defendants. By Opinion dated June 8, 2005, the United States Court of
Appeals for the Third Circuit concluded that Plaintiff sufficiently alleged claims of
deliberate indifference to serious medical needs against two Defendants, former Secretary
Martin Horn of the Pennsylvania Department of Corrections (“DOC”), and Farrohk
Mohadjerin, M.D., Medical Director of SCI-Huntingdon, and an employee of Wexford
Health Sources, Inc. (“Wexford”).2 See Chimenti v. Kimber, 133 Fed. Appx. 833, 834 (3d
1
2
Rebetron is a combination therapy of Interferon and Ribavirin. See Doc. 334, p. 2.
Wexford employed Doctor Mohadjerin as Medical Director of SCI-Huntingdon.
However, Mohadjerin is no longer working at or associated with SCI-Huntingdon or any
other correctional facility in Pennsylvania. See Doc. 142, ¶ 12. The Defendant is also no
longer employed by Wexford and his current whereabouts are unknown.
Cir. 2005).
With respect to Secretary Horn, the Third Circuit Court of Appeals stated as follows:
We conclude that the allegations that Horn knew about the Hepatitis C
problem in the prisons and the importance of the protocol negotiations
between the Department of Corrections (DOC) and Wexford, yet failed to
timely issue the protocol are not so improbable or conclusory as to fail to
state a claim. On remand, the record can be developed with respect to what
Horn knew about the prison system’s Hepatitis C problem, what role he
played in the negotiations, and the reasons for the delay.
Chimenti, 133 Fed. Appx. at 834.
Plaintiff’s request for leave to file an Amended Complaint regarding his surviving
claims was subsequently granted. An Amended Complaint was submitted on August 8,
2005.3 See Doc. 76. Therein, Plaintiff indicates that he has suffered physical harm,
specifically progression of his Hepatitis, including liver deterioration, as a result of the delay
in being provided with Rebetron. He further maintains that he has suffered emotional
distress due to his personal concerns regarding the alleged delays in his treatment. With
respect to Secretary Horn, the Amended Complaint seeks relief on the basis that Horn
“knew or should have known” of the need to implement “a speedy medical protocol for
appropriate Rebetron treatment.” Id. at ¶ 27. Despite that knowledge, Horn allegedly
failed to take reasonable action. Chimenti seeks compensatory and punitive damages as
well as injunctive relief, specifically, a transfer to the State Correctional Institution,
Pittsburgh, Pennsylvania (“SCI-Pittsburgh”) for the purpose of undergoing a liver transplant
evaluation. See id., p. 11.
On April 20, 2006, Horn filed a motion seeking entry of summary judgment. See
Doc. 96. Defendant Horn’s motion claimed entitlement to entry of summary judgment
solely on the grounds that Plaintiff failed to exhaust his administrative remedies. The
3
Although this action was initiated pro se, Chimenti is now represented by counsel.
2
motion was denied by Judge Vanaskie on June 24, 2008. See Doc. 131.
On February 14, 2011, Secretary Horn filed a second summary judgment motion
(Doc. 319) which sought relief on the grounds that: (1) Chimenti cannot establish that Horn
was personally involved in the creation and issuance of the Hepatitis C treatment protocol;
(2) Plaintiff has not shown that there was a delay in the DOC’s issuance of the Hepatitis C
treatment protocol; and (3) even if there was a delay, it cannot be established that the
delay caused Plaintiff any specific or quantifiable harm or damage. See Doc. 326, p. 9.
By Memorandum and Order dated September 19, 2011, this Court denied Horn’s
motion for summary judgment. Presently pending is Horn’s motion (Doc. 339) seeking
reconsideration. Former Secretary Horn has also filed a third summary judgment motion.
See Doc. 345. For the reasons outlined below, both motions will be denied.
Discussion
Motion for Reconsideration
Defendant Horn asks that this Court “reconsider its Memorandum and Order dated
September 19, 2011.” Doc. 339, p. 1. However, Horn’s supporting brief acknowledges
that his reconsideration “does not seek to reargue issues already decided.” Doc. 340, p. 2.
Rather, former Secretary Horn asks that in order to prevent “manifest injustice” this Court
should “entertain the issue of qualified immunity at this time where it will not delay and
could avoid an unnecessary trial.” Id. at 2-3.
An opposing brief by Plaintiff asserts that Horn’s motion should be dismissed
because a reconsideration motion may not be employed to set forth an additional argument
which was not previously raised. See Doc 341, p. 5. Plaintiff adds that a trial will still be
necessary in this matter since the pending reconsideration request would not resolve the
claims against Defendant Mohadjerin or the request for injunctive relief against Defendant
Horn.
3
This Court agrees that it is unclear as to how favorable disposition of the qualified
immunity argument would alleviate the need for a trial in this matter. Clearly, even if the
reconsideration request were to be granted, such a determination would not resolve
disposition of the claims against Doctor Mohadjering. In addition, although Plaintiff was
previously afforded an evaluation in 2009 by Abhinav Humar, M.D., Director of the
Transplant Program at the University of Pittsburgh Medical Center4, there remains the
potential that an additional evaluation would be an appropriate award of injunctive relief,
as requested by Plaintiff, due to the passage of time since Doctor Humar’s 2009
evaluation.
Second, a motion for reconsideration is a device of limited utility. It may be used
only to seek remediation of manifest errors of law or fact or to present newly discovered
precedent or evidence which, if discovered previously, might have affected the court's
decision. Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3d Cir. 1985).
It has also been held that a motion for reconsideration is appropriate in instances
such as where the court has " . . . misunderstood a party, or has made a decision outside
the adversarial issues presented to the court by parties, or has made an error not of
reasoning, but of apprehension." See Rohrbach v. AT & T Nassau Metals Corp., 902 F.
Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915
F. Supp. 712 (M.D. Pa. 1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983). "Because federal courts have a strong interest in the
finality of judgments, motions for reconsideration should be granted sparingly." Continental
Casualty Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).
Defendant Horn’s pending reconsideration request does not seek to correct any
4
Judge Vanaskie previously appointed Doctor Humar to act as an independent medical
expert under Federal Rule of Evidence 706.
4
error of law or fact set forth in this Court’s September 19, 2011 Memorandum and Order.
The Moving Defendant likewise does not present any newly discovered precedent or
evidence which might affect this court’s prior decision.
Rather, the sole purpose of Secretary Horn’s motion is to raise an entirely new
argument, entitlement to qualified immunity. Since the purpose of a reconsideration motion
is not to present new unrelated arguments which could have been previously raised, under
the well established standards set forth above Defendant Horn’s reconsideration motion is
subject to dismissal. See Great American Ins. Co. V. Honeywell, 2009 WL 5064478 *1
(W.D. Pa. Dec. 17, 2009)( a reconsideration motion may not be employed to advance new
theories). This determination is furthered bolstered by the Moving Defendant’s own
acknowledgment that qualified immunity may not be the proper subject of the motion for
reconsideration. See Doc. 346, p. 2.
Summary Judgment
As noted by this Court’s Order of January 24, 2011, the deadline for submission of
dispositive motions which was previously extended on numerous dates expired on
February 14, 2011. See Doc. 318 . Prior to the expiration of said deadline, Defendant
Horn filed two (2) separate motions for summary judgment. The Defendant’s first summary
judgment motion was filed April 20, 2006 and denied June 24, 2008. The second was filed
on February 14, 2011 and denied September 19, 2011. Neither of those motions included
a qualified immunity argument.
On November 2, 2011, Defendant Horn filed a renewed motion for summary
judgment. See Doc. 345. Since the deadline for submission of dispositive motions already
passed, ex-Secretary Horn’s summary judgment motion is clearly untimely.5 It is also noted
5
Horn “concedes the deadline for dispositive motions has since expired.” Doc. 353, p.
2.
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that Horn did not file a motion with the Court seeking permission to file a third summary
judgment motion. Moreover, the Moving Defendant has not offered any explanation
whatsoever as to why he did not included his qualified immunity argument in either of his
prior, timely filed summary judgment motions.
Based upon those considerations, Defendant Horn’s third summary judgment
motion will be dismissed as untimely.6
AND NOW, THIS 18TH DAY OF APRIL, 2012, IT IS HEREBY ORDERED THAT:
1.
Defendant Horn’s motion (Doc. 339) for reconsideration is DENIED.
2.
Defendant Horn’s third summary judgment motion (Doc. 345 ) is
DISMISSED AS UNTIMELY.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
6
Based upon this Court’s conclusion in the September 19, 2011 Memorandum and
Order that there are significant disputes of material fact. Consequently, Defendant Horn’s
reply brief’s alternative invitation that this Court sua sponte raise the issue of qualified
immunity will de declined.
6
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