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Thurman v. County Commissioners of Oklahoma County

United States District Court, W.D. Oklahoma

December 20, 2019



          Charles B. Goodwin United States District Judge.

         Now before the Court is Plaintiff's Motion for Reconsideration (Doc. No. 63) of this Court's Order (Doc. No. 62) adopting United States Magistrate Judge Shon T. Erwin's Report and Recommendation (Doc. No. 53) (“R. & R.”). Defendant Dr. Travis Redmon (“Redmon”) has responded (Doc. No. 64), and Plaintiff has replied (Doc. No. 66).[1]


         Plaintiff, a state prisoner appearing pro se, brings this federal civil rights action under 42 U.S.C. § 1983. On September 5, 2017, Plaintiff filed his Complaint (Doc. No. 1) alleging that while he was a pretrial detainee at the Oklahoma County Detention Center (“OCDC”) he was accosted by Defendant Miller, an OCDC officer who slammed him head-first into the concrete floor rendering him incapacitated. See Compl. at 3-4. After some time, OCDC officials transferred Plaintiff by ambulance to the University of Oklahoma Medical Center, where Defendant Redmon provided medical care to Plaintiff. See Id. at 4-5. Plaintiff alleges that “he was provided inadequate medical treatment” and that “Defendant Redmon and/or [University of Oklahoma] Medical Center staff directly involved, falsified a [computed tomography (“CT”)] scan and provided no appropriate diagnosis or treatment, considering Plaintiff's purported injury.” Id.

         Redmon filed a Motion for Summary Judgment (Doc. No. 51) on March 29, 2019. Plaintiff did not file a response. On April 30, 2019, Judge Erwin issued his R. & R. recommending that the Court grant Redmon's Motion for Summary Judgment. See R. & R. at 10.[2] Judge Erwin explained that Redmon had provided sufficient uncontested material facts and evidence to support summary judgment in his favor on Plaintiff's claim of deliberately indifferent medical treatment and that Plaintiff had not shown any genuine issue of material fact to be litigated at trial. See R. & R. at 8-9.

         Plaintiff filed a timely Objection asserting that: (1) Judge Erwin had not applied the correct legal standard to Plaintiff's claim of inadequate medical care in that the deliberate-indifference standard should not be applied to pretrial detainees; (2) evidence included in, or attached to, the Special Report (Doc. No. 30) created a genuine issue of material fact precluding summary judgment; and, (3) granting Redmon's Motion would violate Plaintiff's Seventh Amendment right to a jury. See Pl.'s Obj. (Doc. No. 57) at 3, 6-8, 9-10.

         On July 24, 2019, the Court conducted a de novo review and issued its Order (Doc. No. 62) adopting Judge Erwin's R. & R. In conducting its de novo review, the Court noted that “[i]ssues or claims raised for the first time . . . are waived” and that “Plaintiff's attempt to belatedly contest the material facts asserted in the Motion is improper.” Order at 2, 4. The Court noted, however, that even if Plaintiff's arguments and “evidence” were considered, his claims against Redmon would fail to survive summary judgment. Order at 4-5.

         Plaintiff filed his Motion for Reconsideration on August 22, 2019, asserting that the Court's Order had improperly failed to: (1) consider evidence in the Special Report that allegedly supports Plaintiff's claims against Defendant Redmon; and (2) appoint an expert to provide an opinion on the extent of Plaintiff's injuries and Dr. Redmon's care. See Pl.'s Mot. Recons. at 1, 3.


         The Federal Rules of Civil Procedure do not explicitly provide for generic motions to reconsider. Hatfield v. Bd. of Cty. Comm'rs for Converse Cty., 52 F.3d 858, 861 (10th Cir. 1995); see also Fed. R. Civ. P. 54(b), 59(e), 60(b); Raytheon Constructors, Inc. v. ASARCO, Inc., 368 F.3d 1214, 1217 (10th Cir. 2003) (noting that Rule 60(b) “only applies to final orders or judgments”). “Where, as here, a party seeks reconsideration of a non-final order, that motion falls within a court's plenary power to revisit and amend interlocutory orders as justice requires.”[3] Rodeman v. Foster, 767 F.Supp.2d 1176, 1188 (D. Colo. 2011) (internal quotation marks omitted) (citing Fed.R.Civ.P. 54(b)); accord United States v. $29, 410.00 in U.S. Currency, No. CIV-13-132-D, 2014 WL 1276235, at *2 (W.D. Okla. Mar. 27, 2014) (“[W]hether to reconsider a nonfinal order is subject to the court's ‘general discretionary authority.'” (quoting Trujillo v. Bd. of Educ. of Albuquerque Pub. Schs., 212 Fed.Appx. 760, 765 (10th Cir. 2007))).

         “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Id. (citation omitted).


         The Court concludes that neither of Plaintiff's arguments justify reconsideration under Rule 60(b) or any other grounds. Plaintiff's reliance on the Special Report and contention that the Court erred in failing to appoint an expert witness are merely restatements of arguments previously made in his Objection. As the Court stated in its Order adopting the R. & R.:

By failing to timely respond to Defendant Redmon's Motion, . . . Plaintiff has “waive[d] the right to respond or to controvert the facts asserted in the summary judgment motion, ” and the Court “should accept as true all material facts asserted and properly supported in the summary judgment motion.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Accordingly, Plaintiff's attempt to belatedly contest the material facts asserted in the Motion is improper. See Def. Redmon's Mot. Summ. J. (Doc. No. 51) at 9-10 (Defendant Redmon asserting that he ordered a CT scan, that a radiologist reviewed the CT scan results and created a report indicating that there was “‘no evidence of acute injury in the osseous cervical spine, '” and that Defendant Redmon[] “relayed the results” to Plaintiff); see also Smith v. Sprint/United Mgmt. Co., No. 15-cv-550-WJM-KLM, 2017 WL 1130034, at *3 (D. Colo Mar. 27, 2017) (“The Court is unaware of any ...

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