Opinion
No. 02-2043-KHV
August 26, 2002
MEMORANDUM AND ORDER
Pending before the Court is a pleading filed by Plaintiff entitled "Notice of Appeal of a Magistrate Order or Alternatively a Motion to Reconsider the Order Dated July 26th 2002 Privacy and FOIA Violation" (doc. 36). In this Memorandum and Order, the Court will address that portion of the pleading (doc. 36-2) that requests the Court reconsider its July 26, 2002 Order denying Plaintiff's Motion to Compel.
The July 26, 2002 Order at issue in Plaintiff's Motion to Reconsider rules on a pleading filed by Plaintiff entitled "Motion to Compel Photo Production and Second Violation of the Freedom of Information Act." More specifically, that Motion requested the Court to
Doc. 23.
"compel the Veterans Administration [and the U.S. Attorney] to produce photographs taken of Mr. Scherer's lesions on his arms, legs, butt and left foot April 24th 2002 at the VA Hospital in Topeka, Kansas";
"find that failure [to produce the photographs] is an obstruction of justice"; and
"note for the record, a second violation of the Freedom of information Act and to award statutory relief for that violation."
Plaintiff's Motion to Compel at p. 1 and p. 4 (doc. 23).
Although Plaintiff refers in his Motion to an exhibit which requests the VA produce — in addition to the referenced photos — a variety of worksheets, exhibits, reports, tests and other documents, Plaintiff's Motion to Compel only requests the Court compel production of the referenced photos.
Id.
In his Motion to Reconsider, Plaintiff concedes he received the photos at issue in the Motion to Compel from the United States Attorney, but argues the Court inappropriately failed to address the following issues in its Order:
Production of worksheets, exhibits, reports, tests and other documents Plaintiff requested at the time he requested the photos;
Plaintiff's request for statutory monetary damages as a result of the VA's refusal to comply with The Freedom of Information Act;
The Veteran Administration's alleged violation of The Privacy Act in producing Plaintiff's medical records to the United States Attorney, an entity Plaintiff asserts is not a party to this lawsuit.
With regard to a Motion for Reconsideration, a movant must predicate his motion on: "(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." "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." "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." If the Court misconstrued a party's position, the facts or the law pertinent to the original motion, the Court may grant a motion to reconsider. The Court has broad discretion to grant or deny a motion to reconsider.
D. Kan. Local R. 7.3.
Aetna U.S. Healthcare v. Hoechst Aktiengesellischaft, 67 F. Supp. d 1242, 1248 (D.Kan. 1999) (citing Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan. 1994)).
Aetna at 1248 (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)).
See Burton v. R.J. Reynolds Tobacco Co., Inc., 175 F.R.D. 321, 323 (D.Kan. 1997).
Id. (citing Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988)).
Based on information presented, the Court is not persuaded it should have addressed in its July 26, 2002 Order the issue of whether the VA must produce any tangible item other than the photographs referenced in Plaintiff's Motion. The fact that an exhibit to Plaintiff's Motion to Produce Photographs referenced this issue is insufficient to be deemed as an issue placed by Plaintiff before the Court for resolution.
Neither was Plaintiff's request for money damages as a result of an alleged FOIA violation appropriately before the Court. In order for Plaintiff to seek such monetary or other relief as the result of an alleged FOIA violation, Plaintiff must exhaust his administrative remedies and file a cause of action for damages as set forth by the FOIA statute. Notably, Plaintiff's Complaint specifically asserts he already has addressed FOIA violations "in the related case, Scherer v. The United States, No. 01-2428 and [such FOIA violations are] not repeated in this cause of action."
See 5 U.S.C. § 552 et seq.
Complaint at Fact 6, page 3 (doc. 1).
Finally, the issue of whether the Veteran Administration violated The Privacy Act in producing Plaintiff's medical records to the United States Attorney was certainly not an issue placed before the Court for resolution in Plaintiff's Motion to Compel, because — regardless of whether this is or is not a violation — at the time Plaintiff filed the Motion to Compel, the photographs had not been furnished to its lawyer, the United States Attorney.
Plaintiff's Motion to Reconsider (doc. 36-2) is denied.
IT IS SO ORDERED.