United States District Court, W.D. Oklahoma
Charles B. Goodwin United States District Judge.
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).
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
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. 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.
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.
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.
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.
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.” 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))).
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.
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