The opinion of the court was delivered by: William Q. Hayes United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION PURSUANT TO FED.R.CIV.P. 59(e) AND S.D.CAL.CIVLR7.1(i)(1) [Doc. No. 39]
Currently before the Court is Plaintiff's "Motion for Reconsideration" [Doc. No. 39]. Plaintiff seeks reconsideration of the Court's May 25, 2007 Order granting in part and denying in part Defendant's Motion to Dismiss his Second Amended Complaint and dismissing the action for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 36].
The Court has found the matter suitable for decision without oral argument pursuant to S.D. Cal. Civil Local Rule 7.1(d)(1), and for the reasons set forth below, DENIES Plaintiff's Motion pursuant to FED.R.CIV.P. 59(e) and S.D. Cal. Civil Local Rule 7.1(i)(1).
Both Plaintiff's original civil rights Complaint, filed on November 15, 2005, as well as his First Amended Complaint ("FAC"), filed on June 22, 2006, alleged Eighth Amendment violations against Calipatria State Prison Chief Medical Officer ("CMO") Levine pursuant to 42 U.S.C. § 1983 based on claims he refused to provide Plaintiff with necessary medical treatment for complications suffered as the result of jaw surgery first performed in March 2001.
On September 8, 2006, this Court dismissed Plaintiff's First Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 21]. Specifically, the Court found that while the allegations Plaintiff set forth in his First Amended Complaint against CMO Levine were not barred by the statute of limitations, they nonetheless were insufficient to show the deliberate indifference required to support an Eighth Amendment violation. (See Sept. 8, 2006 Order at 5-9.) Plaintiff was granted leave to amend, and on November 13, 2006, he filed a Second Amended Complaint ("SAC") [Doc. No. 27].
Plaintiff's Second Amended Complaint re-alleged Eighth Amendment inadequate medical care claims against CMO Levine pre-dating those alleged in his First Amended Complaint. It also named two additional defendants: Richard Torchia, the doctor employed by Alvarado Hospital who originally performed Plaintiff's jaw surgery in 2001 and who treated him afterward, and Dr. Perry T. Mansfield, another Alvarado doctor who provided Plaintiff postoperative care. (See SAC ¶¶ 7, 8.) Plaintiff's Second Amended Complaint asserted four separate causes of action: (1) "malpractice and negligence" on the part of Dr. Torchia, (id. ¶¶ 74-80); (2) "misrepresentation and fraud" committed by Dr. Mansfield, (id. ¶¶ 81-82); (3) "deliberate indifference" under the Eighth Amendment by Dr. Torchia and CMO Levine, (id. ¶¶ 83-90); and (4) "retaliation" by Dr. Torchia. (Id. ¶ 91.)
On May 25, 2007, this Court dismissed Plaintiff's claims against Drs. Torchia and Mansfield for failure to serve pursuant to FED.R.CIV.P. 4(m) and as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i) and 1915A(b), granted CMO Levine's Motion to Dismiss to the extent Plaintiff sought damages against him for acts taken in his official capacity pursuant to FED.R.CIV.P. 12(b)(6), and denied Levine's Motion to Dismiss Plaintiff's claims as barred by the statute of limitations pursuant to FED.R.CIV.P. 12(b)(6).
Nevertheless, the Court found Plaintiff's Second Amended Complaint failed to state an Eighth Amendment inadequate medical care claim against CMO Levine, granted his Motion to Dismiss on that basis pursuant to FED.R.CIV.P. 12(b)(6), and denied Plaintiff leave to amend as futile. (See May 25, 2007 Order [Doc. No. 36] at 23.)
Plaintiff now asks this Court to "accept additional testimony" in the form of several exhibits which he claims provide supplemental support for his allegations of deliberate indifference against CMO Levine and then "reconsider the grounds on which the Order dismissing [his] Complaint were based." (Pl.'s Mot. at 1.) Defendants have filed an Opposition [Doc. No. 41], to which Plaintiff has submitted a Reply [Doc. No. 43].
Motions for reconsideration filed pursuant to a Court's Local Rules may be construed as motions to alter or amend judgment under Federal Rule of Civil Procedure 59(e). Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989). In Osterneck, the Supreme Court stated that "a postjudgment motion will be considered a Rule 59(e) motion where it involves 'reconsideration of matters properly encompassed in a decision on the ...