Opinion
Civil Action No. 01-3202-KHV.
November 1, 2004
MEMORANDUM AND ORDER
Horace Barnes, an inmate at the United States Penitentiary in Leavenworth, Kansas (USP-Leavenworth), brings suit under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., alleging malpractice by prison medical staff. On September 27, 2004, the Court sustained defendant's motion to dismiss or alternatively, motion for summary judgment. This matter is before the Court onPlaintiff's Motion For Reconsideration (Doc. #83) filed October 5, 2004. For reasons stated below, the Court overrules plaintiff's motion.
Legal Standards
The Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D. Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Factual Background
The Court has previously set forth the factual background which the Court incorporates by reference. See Memorandum And Order (Doc. #81) filed September 27, 2004.
On September 27, 2004, the Court sustained defendant's motion to dismiss or alternatively, motion for summary judgment. See Memorandum And Order (Doc. #81) at 17. The Court held that plaintiff had failed to exhaust administrative remedies except as to the following two claims: (1) on January 27, 1999, Al-Ruballe negligently treated him with medication from an unlabeled bottle and (2) on January 28, 1999, Al-Ruballe and Dr. Hill negligently prescribed Clotrimazole for his condition. See id. at 17-18. As to those claims, the Court held that defendant was entitled to summary judgment. See id. at 18.
On October 5, 2004, plaintiff filed a motion to reconsider. He argues that (1) in granting summary judgment in favor of defendant, the Court applied the wrong legal standard, and (2) the Court should have allowed discovery and appointed an expert witness before ruling on defendant's motion for summary judgment.
Analysis
Plaintiff argues that in granting summary judgment in favor of defendant, the Court imposed a heightened standard of pleading and proof. See Plaintiff's Motion For Reconsideration (Doc. #83) at 1. In particular, plaintiff states that he is required only to make a "short and plain statement" of his claim showing that he is entitled to relief. Id. The pleading standards cited by plaintiff apply to motions to dismiss based on the sufficiency of the original complaint. These standards do not govern plaintiff's burden in responding to a motion for summary judgment. Rule 56(e) provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). The Court correctly applied Rule 56(e) to defendant's motion for summary judgment.
Plaintiff also argues that the Court should have allowed discovery before ruling on defendant's motion for summary judgment. See Plaintiff's Motion For Reconsideration (Doc. #83) at 2-4. Shortly after defendant filed its motion for summary judgment, plaintiff filed two motions to continue to take additional discovery. See Motion For Continuance Of Summary Judgment In Order To Take Additional Discovery (Doc. #21) filed October 7, 2002; Plaintiff's Amended Motion For Continuance Of Summary Judgment In Order To Take Additional Discovery (Doc. #23) filed October 18, 2002. Before the Court had ruled on either motion, plaintiff filed a 38-page response to defendant's motion for summary judgment with numerous attached exhibits. See Plaintiff's Objection To Defendant's Memorandum In Support Of Defendant's Motion To Dismiss Or Alternatively, Motion For Summary Judgment (Doc. #27) filed October 28, 2002. In September of 2003, the Honorable G.T. VanBebber overruled plaintiff's motions to delay a ruling on defendant's motion for summary judgment pending discovery because plaintiff had already filed a response to defendant's motion. See Order (Doc. #66) filed September 30, 2003. Plaintiff did not seek reconsideration of Judge VanBebber's order. In addition, plaintiff's motions to continue were insufficient under Rule 56(f), which allows a party to submit an affidavit "that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition" and permits the Court to order a continuance to permit further discovery. The Court has discretion whether to grant a motion under Rule 56(f). See Jensen v. Redevelopment Agency, 998 F.2d 1550, 1553-54 (10th Cir. 1993). The rule is not "invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable." Pasternak v. Lear Petro. Explor., Inc., 790 F.2d 828, 833 (10th Cir. 1986). In his motions to continue, plaintiff did not present an affidavit in compliance with Rule 56(f) and he did not state with specificity how the additional time would enable him to obtain evidence to oppose defendant's motion for summary judgment. See Jensen, 998 F.2d at 1554. Finally, despite plaintiff's pleas for more discovery, he was able to specifically respond to each of defendant's statements of fact and he did not refer to any discovery necessary to controvert those facts. See Plaintiff's Objection To Defendant's Memorandum In Support Of Defendant's Motion To Dismiss Or Alternatively, Motion For Summary Judgment (Doc. #27) filed October 28, 2002 at 1-16.
Plaintiff did ask for a "photographic physical examination" to show the injury to his penis, Plaintiff's Response To Defendant's Objection To Plaintiff's Amended Motion For Continuance Of Summary Judgment In Order To Take Additional Discovery (Doc. #28) filed November 7, 2002 at 1, but such an examination would not have altered the outcome on defendant's motion for summary judgment because he did not present sufficient evidence that defendant's negligence caused any such injury. Likewise, the Court has reviewed the 150 interrogatories plaintiff proposed in March of 2003 and finds that most of the interrogatories were not likely to lead to the discovery of admissible evidence on the issues presented in defendant's motion for summary judgment. See Plaintiff's Motion For Leave To Serve Additional Interrogatories (Doc. #47) filed March 17, 2003.
Plaintiff argues that the Court improperly required him to show what substance Al-Ruballe gave him from an unlabeled bottle and that discovery could have revealed this fact. See Plaintiff's Motion For Reconsideration (Doc. #83) at 3. In its prior order, the Court stated:
In his opposition memorandum, plaintiff states that on January 27, 1999, Al-Ruballe treated him with medication from an unlabeled bottle and that Al-Ruballe stated that the bottle contained the prescription drug Podofilox. See Plaintiff's Objection (Doc. #27) at 13, 28. Defendant argues that it is entitled to summary judgment because plaintiff has not offered expert testimony to show that Al-Ruballe breached the standard of care or that plaintiff suffered injury because of that breach. Plaintiff's unsworn statement is insufficient to withstand a motion for summary judgment. See D. Kan. Rule 56.1; Fed.R.Civ.P. 56(e).
If plaintiff's statement was verified, a reasonable jury might conclude that Al-Ruballe breached the standard of care by giving plaintiff an unlabeled bottle of a prescription drug. See Bacon, 243 Kan. at 307, 756 P.2d at 420 (lack of reasonable care can be established by common knowledge or experience). Even if plaintiff could establish a breach of the standard of care, however, he has not presented evidence that he suffered injury on account of that breach. In his opposition memorandum, plaintiff states that he had received Podofilox treatments with no adverse reaction in the past, but that when he received the treatment from the unlabeled bottle on January 27, 1999, he suffered swelling and pain. See Plaintiff's Objection (Doc. #27) at 28. Again, plaintiff's statement is unverified. Assuming that plaintiff could submit a verified statement on this issue, a reasonable jury could conclude that plaintiff suffered some injury from taking the substance in the unlabeled bottle. Absent speculation, however, the jury could not conclude that the lack of labeling caused plaintiff's injuries. In other words, plaintiff has not shown what was in the bottle or that it was something other than Podofilox — what Al-Ruballe intended to use and what plaintiff had received in the past with no adverse reaction. No reasonable jury could find that plaintiff was injured because the bottle was not labeled. The Court therefore sustains defendant's motion for summary judgment on this claim.Memorandum And Order (Doc. #81) at 15-16 (footnote omitted). Plaintiff maintains that prison medical records would show what substance was in the unlabeled bottle. Defendant attached the prison medication log as an exhibit to its memorandum in support of its motion for summary judgment, but it did not reflect that plaintiff received any medication on January 27, 1999. Plaintiff has not identified any other prison log which would contain information on the substance Al-Ruballe gave him from an unlabeled bottle. The Court therefore must overrule plaintiff's motion to reconsider on this issue.
Finally, plaintiff argues that the Court should have appointed or allowed plaintiff to retain an expert witness before ruling on defendant's motion for summary judgment. The record does not reflect that plaintiff asked the Court to appoint an expert witness, and plaintiff cites no authority which requires the Court to do so sua sponte. Plaintiff has not explained what attempts he has made to retain an expert witness since he filed this case in May of 2001. Plaintiff has raised several concerns about his ability to communicate with individuals outside of prison, but he has been able to overcome any such obstacles. For example, plaintiff was able to obtain (1) letters from Bayer Corporation and the Food and Drug Administration regarding the proper use of the drug Clotrimazole, see Exhibit 7 to Plaintiff's Objection (Doc. #27); Exhibit C to Motion For Leave To Supplement Plaintiff's Objection To Defendant's Motion To Dismiss, Or Alternatively Summary Judgment (Doc. #31) filed November 15, 2002, and (2) detailed information from the Missouri and Kansas Boards of Healing Arts concerning the background of two physicians who treated him, see Plaintiff's Objection (Doc. #27) at 2-4. Plaintiff provides no evidence that while in prison, he could not contact an attorney regarding his claim or a physician to potentially serve as an expert witness. The Court therefore must overrule plaintiff's motion to reconsider based on his argument that the Court should have appointed or allowed plaintiff to retain an expert witness.
IT IS THERE FORE ORDERED that Plaintiff's Motion For Reconsideration (Doc. #83) filed October 5, 2004 be and hereby is OVERRULED.