United States District Court, S.D. California
ORDER DENYING MOTIONS FOR RECONSIDERATION (ECF NOS.
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Thomas John Heilman's
“Objections to the Court's Granting in Part and
Denying in Part the Defendants' Motion for Summary
Judgment re: Eighth Amendment Claim as to Defendant R. Davis,
” which the Court construes as a motion for
reconsideration of the Court's prior order on the
parties' cross-motions for summary judgment. (“Mot.
for Reconsideration, ” ECF No. 192.) Also before the
Court are Dr. Davis's Response in Opposition to,
(“Opp'n, ” ECF No. 203), and Plaintiff's
Reply in Support of, (“Reply, ” ECF No. 205), the
Motion for Reconsideration.Plaintiff also filed what is
ostensibly another motion for reconsideration. (“Second
Mot. for Reconsideration, ” ECF No. 201.) After
considering the parties' arguments and the law, the Court
DENIES both of Plaintiff's motions.
Court's previous Order granting in part and denying in
part the parties' cross-motions for summary judgment
(“MSJs”) contains a thorough and accurate
recitation of the basic facts of this case, which the Court
incorporates by reference. (See Order on Motions for
Summary Judgment (“MSJ Order”), ECF No. 184.)
Relevant to the present motion for reconsideration, the Court
granted Defendants' motion for summary judgment as to
Plaintiff's Eighth Amendment claim against Dr. Robert
Davis in finding that Dr. Davis did not act with deliberate
indifference to Plaintiff's serious medical needs in the
aftermath of Plaintiff's alleged beating in his cell.
(MSJ Order 10-13.) The Court additionally found that Dr.
Davis did not violate Plaintiff's due process rights
under the Fourteenth Amendment. (Id. at 13-17.)
Plaintiff challenges several aspects of the Court's MSJ
Order with regard to Dr. Davis, which the Court addresses
Southern District of California, a party may apply for
reconsideration “[w]henever any motion or any
application or petition for any order or other relief has
been made to any judge and has been refused in whole or in
part.” Civ. L.R. 7.1(i)(1). The moving party must
provide an affidavit setting forth, inter alia, new
or different facts and circumstances which previously did not
reconsideration of a prior order is “appropriate if the
district court (1) is presented with newly discovered
evidence, (2) committed clear error or the initial decision
was manifestly unjust, or (3) if there is an intervening
change in controlling law.” Sch. Dist. No. 1J,
Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993). Reconsideration is an “extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.” Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000). Ultimately, whether to grant or deny a motion for
reconsideration is in the “sound discretion” of
the district court. Navajo Nation v. Norris, 331
F.3d 1041, 1046 (9th Cir. 2003) (citing Kona
Enters., 229 F.3d at 883). A party may not raise new
arguments or present new evidence if it could have reasonably
raised them earlier. Kona Enters., 229 F.3d at 890
(citing 389 Orange St. Partners v. Arnold, 179 F.3d
656, 665 (9th Cir. 1999)).
outlines six objections to the Court's Order granting
Defendants' motion for summary judgment on
Plaintiff's Eighth Amendment claim against Dr. Davis.
(See generally Mot. for Reconsideration.) The Court
considers each in turn.
Plaintiff argues that the Court erred by relying on Dr.
Davis's evidence that he took Plaintiff's vital signs
in the Crisis Treatment Center (“CTC”) at Richard
J. Donovan Correctional Facility (“RJD”).
(Id. at 2.) Specifically, Plaintiff argues that the
“Court overlooked Heilman's assertion that
if his vital signs were taken, then where are they
recorded? If not recorded, why not?” (Id.
(emphasis in original); see also Reply 7 (citing
exhibit and noting that the “physical exam” box
had no “vital signs” recorded).) The Court did
not overlook Plaintiff's assertion. Rather, the Court
found that his assertion, devoid of evidentiary support, was
insufficient to rebut Defendants' evidence in the record
at the summary judgment phase. In particular, Dr. Davis
declared that “Plaintiff allowed [him] to take his
vital signs, which were all normal. Specifically, there was
no evidence of shortness of breath, difficulty breathing,
inadequate air flow into or out of the lungs, or rapid
respirations, which would support a determination of
respiratory distress, though pain may have made breathing
uncomfortable for Plaintiff.” (MSJ Order 10 (citing
Davis Decl. ¶ 6 (emphasis added)); see also ECF
No. 163-1, ¶ 6 (noting same based on his physical exam
of Plaintiff).) That Dr. Davis did not record these
respiratory findings on the “physical exam”
section, which includes boxes for items such as pulse and
blood pressure, does not support Plaintiff's argument.
Furthermore, as Dr. Davis argues, Plaintiff “fails to
articulate how the answers to the questions he posed would
make any difference in the Court's grant of the summary
judgment motion.” (Opp'n 3.) Accordingly, this
Plaintiff argues that the Court misconstrued the facts when
noting that Dr. Davis ordered an x-ray of Plaintiff's
chest area on May 9, 2013. (Mot. for Reconsideration 2.)
According to Plaintiff, Dr. Davis only ordered a chest x-ray
on May 10, 2013. (Id.) But Plaintiff fails to
explain how this alleged misstatement of fact would have any
bearing on the Court's ruling on Dr. Davis's motion
for summary judgment. To be sure, Plaintiff states that
“Defendant Davis was aware Heilman had a
serious medical need-(a ruptured and collapsed lung!) yet,
refused all medical care!” (Id. at 3 (emphasis
in original); see also Reply 9-10.) But Plaintiff
fails to provide any evidence to support this point (i.e.,
that Dr. Davis was aware of a serious medical need and was
deliberately indifferent to that need by failing to order an
x-ray on that day). Rather, as discussed, after his initial
assessment of Plaintiff, Dr. Davis found “no evidence
of shortness of breath, difficulty breathing, inadequate air
flow into or out of the lungs, or rapid respirations, which
would support a determination of respiratory distress, though
pain may have made breathing uncomfortable for
Plaintiff.” (MSJ Order 10 (citing Davis Decl. ¶
6).) And according to Plaintiff's own admissions, Dr.
Davis did in fact order an x-ray to assess his medical
condition shortly thereafter. (See, e.g., Reply 9.)
Accordingly, this argument fails.
Plaintiff similarly argues that the Court misstated that Dr.
Davis ordered another chest x-ray on May 13, 2013.
(Id.) Plaintiff argues that Dr. Davis only ordered
one x-ray, on May 10, 2013. (Id.) Again, Plaintiff
fails to explain how this alleged misstatement impacts the
Court's prior decision. Moreover, the Court did not even
rely on this alleged May 13, 2013 x-ray in finding that Dr.
Davis did not violate Plaintiff's Eighth Amendment
rights. (See MSJ Order 10-13.) Accordingly, this
Plaintiff again takes issue with the fact that Dr. Davis did
not record the specifics of Plaintiff's vital signs.
(Mot. for Reconsideration 3-4.) He again poses a question of
why Dr. Davis would take his vital signs when Nurse Donoghue
allegedly did not. (Id.) A question is not an
argument, and Plaintiff again fails to explain how this
should alter the Court's prior decision. And just because
Plaintiff believes it would be more likely for Donoghue to
take his vitals, it does not therefore follow that because he
allegedly did not, Dr. Davis could not have as well.
Plaintiff also states that the Court's reliance on this
apparent discrepancy is “inconsistent with established
medical protocol and procedure.” (Id. at 4.)
But Plaintiff provides no citation to support his opinion,
nor any argument for why the Court should even consider this
alleged new evidence at this stage. Finally, Plaintiff again
argues that Dr. Davis failed to document these “vital
signs” in the “physical exam box” of his
cited exhibit, (Reply 12), which the Court has rejected
above. Accordingly, this argument fails.
Plaintiff argues that “there has been presented a
genuine dispute . . . as to whether [he] was in respiratory
distress and had difficulty breathing and related these facts
to Defendant Davis.” (Mot. for Reconsideration 4.)
Specifically, Plaintiff argues that he complained of
difficulty breathing on his left side, which Dr. Davis noted
in his medical evaluation. (Reply 13.) There is no
discrepancy here-Dr. Davis admits that Plaintiff “told
[him] that he had difficulty breathing on the left side that
caused him to cough a lot.” (See, e.g., ECF
No. 163-1, ¶ 5.) So Dr. Davis examined him, and
concluded that “there was no evidence of shortness of
breath, difficulty breathing, inadequate air flow into or out
of the lungs, or rapid respirations, which would support a
determination of respiratory distress, though pain may have
made breathing uncomfortable for Plaintiff.”
(Id. ¶ 6; see ...