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Donnie Ray O'neal, Jr v. California Department of Corrections

November 27, 2012

DONNIE RAY O'NEAL, JR.,
PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER DISMISSING SECOND AMENDED COMPLAINT WITH PREJUDICE AND JUDGMENT ENTERED THEREON (ECF No. 29)

I. PROCEDURAL HISTORY

Plaintiff Donnie Ray O'Neal, Jr. is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on September 2, 2009 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Consent, ECF No. 6.)

Plaintiff's Complaint and First Amended Complaint were screened and dismissed, with leave to amend, for failure to state a claim. (Orders Dismiss., ECF Nos. 17, 23.) On September 25, 2012, Plaintiff's Second Amended Complaint (Second Am. Compl., ECF No. 26) was screened and dismissed with prejudice for failure to state a claim (Order Dismiss., ECF No. 27), Judgment was entered thereon (J. on Order, ECF No. 28), and the case was closed.

Plaintiff has filed a motion for reconsideration of the September 25, 2012 Order and Judgment. (Mot. Recons., ECF No. 29.) That motion is now before the Court.*fn1

II. SUMMARY OF SECOND AMENDED COMPLAINT

Plaintiff is incarcerated at California Substance Abuse and Treatment Facility at Corcoran, California ("CSATF"). (Second Am. Compl. at 1.) He has medical conditions that require pain management, antibiotics, and a special diet. (Id. at 5.) He alleges that on February 25, 2009, Defendant Physician's Assistant Byers was deliberately indifferent in falsifying Plaintiff's medical records from "deaf", to "hearing impaired." (Id. at 3.)

Plaintiff challenged Byers' decision by filing a February 29, 2009 inmate complaint with the CSATF Warden's office. Defendants Warden Allison and Dr. Enenmoh, who each had responsibility for reviewing the inmate complaint were deliberately indifferent by failing to take action thereon to provide for his safety. (Id.)

On November 30, 2009, while Plaintiff's complaint was still "sitting on [Defendant Enenmoh's] desk, awaiting his final review . . . ." (Id. at 4), Defendant Enenmoh retaliated for the inmate complaint and the instant civil rights action filed September 2, 2009, by ordering that certain of Plaintiff's medical treatments be discontinued. (Id. at 4.)

On August 12, 2012, Plaintiff awoke sweating, with chest pain, cramps, and shortness of breath. He was transported to the medical clinic where preliminary examinations found that Plaintiff's blood pressure and heart rate were abnormally high. An EKG discovered an irregular heart rhythm. The attending nurse related this information to an unnamed doctor, who retaliated for filing of the instant action by not providing immediate treatment. The nurse told a guard that a patient with these symptoms outside of prison would have been admitted for observation. Plaintiff was again denied medical treatment in retaliation for filling the instant action. (Id.)

Plaintiff's Second Amended Complaint names as Defendants: (1) Timothy Byers, CSATF Physician's Assistant; (2) A. Enenmoh, CSATF Chief Medical Officer (CMO); (3) K. Allison, CSATF Warden; and (4) Director, California Department of Corrections and Rehabilitation (CDCR).

III. LEGAL STANDARD

Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. In seeking reconsideration of an order, Local Rule 230(j) requires a party to identify the motion or order in issue and when it was made, and show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."

"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the . . . court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009), and "[a] party seeking reconsideration must show more than a disagreement with the [c]court's decision, and recapitulation . . ." of that which was already ...


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