Ortiz v. Torgenson et al

Filing 82

Memorandum Decision and Order Denying Motion to Alter or amend Judgment; It is ordered that Plaintiff's post judgment motion is Denying 72 Motion to Reconsider. This action remains closed. Signed by Judge Tena Campbell on 11/13/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DANIEL ORTIZ,

v.

MEMORANDUM DECISION
& ORDER DENYING MOTION
TO ALTER OR AMEND JUDGMENT

OFFICER TORGENSEN et al.,

Case No. 2:17-CV-328 TC

Plaintiff,

Defendants.

District Judge Tena Campbell

On March 27, 2019, in thirty-one pages thoroughly reciting facts and analysis, the Court
granted Defendants’ summary-judgment motion. (Doc. Nos. 60 & 70.) To summarize, Plaintiff’s
failure-to-protect claim was denied primarily based on failure to exhaust; retaliation claim was
denied primarily based on lack of “but-for motivation”; and inadequate-medical-treatment claim
denied primarily based on failure to show deliberate indifference. (Doc. No. 70.)
Plaintiff then filed Motion to Reconsider, which the Court construes as a motion to alter
or amend the judgment. (Doc. No. 72.) Plaintiff specifically asserts that the Court erred in its
perspective on the facts and its conclusions that the undisputed material facts do not support
Plaintiff’s claims against Defendants. (Id.) He further argues that, if the Court had granted his
discovery requests, he would have had the factual ammunition to derail the Court’s analysis.
A motion under Federal Rule of Civil Procedure 59(e)
may be granted only if the moving party can establish: (1) an
intervening change in the controlling law; (2) the availability of
new evidence that could not have been obtained previously
through the exercise of due diligence; or (3) the need to correct
clear error or prevent manifest injustice. Servants of the Paraclete
v. Does, 2014 F.3d 1005, 1012 (10th Cir. 2000). A motion under

Rule 59(e) is not to be used to rehash arguments that have been
addressed or to present supporting facts that could have been
presented in earlier filings. Id. Reconsideration of a judgment after
its entry is an extraordinary remedy that should be used
sparingly. See Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th
Cir. 2004); Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242
(10th Cir. 2006); Zucker v. City of Farmington Hills, 643 F. App'x
555, 562 (6th Cir. 2016) (relief under R. 59(e) is rare).
Blake v. Jpay, No. 18-3146-SAC, 2019 U.S. Dist. LEXIS 150310, at *4-5 (D. Kan. Sept. 4,
2019).
Plaintiff has not shown any of these three grounds for relief exist here. He does little
more than rehash arguments that the Court decided against him: for instance, he has a different
idea than the Court does about what the undisputed, material facts are and what conclusions they
lead to, and he ignores that the basis of the decision on his failure-to-protect claim was failure to
exhaust, not the merits. He does not suggest there is new evidence but instead refers to and
attaches grievances that would have allegedly made a difference to the Court’s analysis; he does
not explain why he did not highlight and attach those grievances in his original summaryjudgment responses.
Finally, perhaps indicating an argument of clear error or manifest injustice, he faults the
Court’s denial of his unnecessarily expansive motion to compel discovery for curtailing the
evidence he could use to support his attacks on Defendants’ summary-judgment motion. (Doc.
Nos. 41, 46-48, & 65-66.) Plaintiff’s motion to compel discovery was filed before discovery
began via the standard process in prisoner § 1983 cases of requiring defendants to file a Martinez
report. (Doc. Nos. 9, 41, 46-48.) He could have--after the Martinez report was filed--specified
exactly what items of additional evidence would have legitimately helped him prove each of his

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claims’ elements. This he did not do, nor does the Court believe further evidence would have
changed the result.
For example, Plaintiff contends that a certain video’s contents would have proved his
failure-to-protect claim. However, this ignores the fact that the Court based its rejection of the
claim on his failure to exhaust, not the merits. Other examples include Plaintiff’s arguments that
the Court left out facts in his favor.
However, the Court clearly accepted as true the undisputed, material facts, including
those that did not flatter Defendants, such as: (1) Under its failure-to-protect section, the Court
accepted as true Plaintiff’s statement that Defendant Peterson said that Plaintiff’s behavior of
pursuing a grievance regarding his assault “put a huge spotlight” on Plaintiff and that “it would
all go bad for [Plaintiff] if [he] pursue[d] it.” (Doc No. 70, at 8.) (2) Under its retaliation section,
the Court accepted as true that Defendants denied privileges, moved Plaintiff to more restrictive
housing, and confiscated property, all based partly on “a wish to deter Plaintiff’s grievance
filings.” (Id. at 14-22.) And, (3) under its inadequate-medical-care section, the Court accepted as
true that Defendants Sorensen and Sylvester did not take Plaintiff to physical therapy. (Id. at 23,
27-29.) Just because such facts have aspects that seem damning to Plaintiff does not make them
dispositive under the elements of a legal cause of action. Including and despite such facts,
Plaintiff did not make a case for each of his claims. Any additional evidence along these lines
that Plaintiff laments was not considered by the Court would not have changed the result and
thus was not material.
In sum, Plaintiff does not meet the exacting standard for relief under Rule 59(e); the
Court’s March 27, 2019 Order and Judgment stand.

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ORDER
IT IS ORDERED that Plaintiff’s post-judgment motion is DENIED. (Doc. No. 72.)
This action remains closed.
DATED this 13th day of November, 2019.
BY THE COURT:

JUDGE TENA CAMPBELL
United States District Court

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