United States District Court, D. Maryland
L. Hollander United States District Judge.
February 1, 2018, defendants' motion to dismiss or for
summary judgment was granted and judgment was entered in
their favor in this civil rights case. ECF 68 & 69.
Plaintiff Roger Ervin filed a Motion for Reconsideration on
February 16, 2018 (ECF 71), which he supplemented on February
23, 2018. ECF 72. He seeks reconsideration of this
court's grant of judgment in favor of the medical
defendants. Defendants oppose the motion because it fails to
assert a basis for relief under Fed. R. Civ. Proc. 60(b). ECF
Ervin filed his motion within 28 days of the date of the
dispositive decision it is construed as one filed pursuant to
Fed. R. Civ. Proc. 59(e). See Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403, 412 (4th Cir. 2010), citing
Small v. Hunt, 98 F.3d 789, 797 (4th Cir.1996)
(where post-judgment motion is filed within time limit for
Rule 59(e) (28 days), Rule 59(e) governs, not Rule 60(b)).
For the reasons that follow, the motion must be denied.
motion to alter or amend is governed by Fed. Rule of Civ.
Proc. 59(e) and “need not be granted unless the
district court finds that there has been an intervening
change of controlling law, that new evidence has become
available, or that there is a need to correct a clear error
or prevent manifest injustice.” Robinson v. Wix
Filtration Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010).
“[M]ere disagreement does not support a Rule 59(e)
motion.” Hutchinson v. Staton, 994 F.2d 1076,
1082 (4th Cir. 1993). The rule permits a district court to
correct its own errors, "sparing the parties and the
appellate courts the burden of unnecessary appellate
proceedings." Russell v. Delco Remy Div. of Gen.
Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995).
59(e) motions may not be used, however, to raise arguments
which could have been raised prior to the issuance of the
judgment, nor may they be used to argue a case under a novel
legal theory that the party had the ability to address in the
first instance. See Russell, 51 F.3d at 749;
Concordia College Corp. v. W.R. Grace & Co., 999
F.2d 326, 330 (8th Cir.1993); FDIC v. World Univ.,
Inc., 978 F.2d 10, 16 (1st Cir.1992); Simon v.
United States, 891 F.2d 1154, 1159 (5th Cir.1990);
see also In re: Reese, 91 F.3d 37, 39 (7th Cir.1996)
("A motion under Rule 59(e) is not authorized 'to
enable a party to complete presenting his case after the
court has ruled against him.'") (quoting
Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th
Cir.1995)); 11 Wright et al., Federal Practice and Procedure
' 2810.1, at 127-28 (2d ed. 1995) ("The Rule 59(e)
motion may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised
prior to the entry of judgment.").
if a party relies on newly discovered evidence in its Rule
59(e) motion, the party "must produce a 'legitimate
justification for not presenting' the evidence during the
earlier proceeding." Small v. Hunt, 98 F.3d
789, 798 (4th Cir.1996) (quoting RGI, Inc. v. Unified
Indus., Inc., 963 F.2d 658, 662 (4th Cir.1992)). In
general, "reconsideration of a judgment after its entry
is an extraordinary remedy which should be used
sparingly." Pacific Ins. Co. v. American Nat. Fire
Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citing
Wright et al., Federal Practice and Procedure ' 2810.1,
at 124 (2d ed. 1995)).
states he was under the impression that this court had stayed
consideration of the motion filed by the medical defendants
until after he had received both sinus and eye surgery,
admits he has had both surgeries, but states the eye surgery
was unsuccessful. ECF 71 at 1. Further, he claims that he was
“under the impression” that this court would not
rule on the dispositive motion until “full disclos[ure]
of discovery was made.” Id. He adds that the
medical defendants claimed to provide him with a full copy of
his medical record, but disputes that what he was given was
the full record. Id. Missing from the records
provided were “the surgery report of the sinus or eye
surgery . . . [and] the report from the neurologist.”
addition, Ervin claims that there are genuine disputes of
material fact regarding medication prescribed to him by a
specialist. Id. at 3. He reasons that because he was
referred to a specialist, i.e., a neurologist, the
medical defendants deferred to his opinion. Id.
Ervin also contends that the medical defendants' failure
to provide him with prescribed eye drops after his surgery
contributed to the rejection of the tube in his eye.
Id. Ervin asserts: “Surely it's deliberate
indifference for the medical defendants to interfere with the
prescribed treatment of a specialist.” Id.
includes administrative remedy procedure (“ARP”)
complaints in support of his claim that specialist's
orders are not observed. The first is an ARP dated January 2,
2018 (NBCI-0131-18), concerning his claim that he is to be
provided with a lower level shower (ECF 71-5 at 1-2); the
second is an ARP dated August 31, 2017 (NBCI-2096-17),
concerning his claim that he should be provided a medical
shower (ECF 71-5 at 3-4). Neither ARP was submitted by Ervin
in opposition to defendants' motion.
supplemental motion for reconsideration, Ervin provides yet
another ARP (NBCI-2441-17) which he states was submitted
November 1, 2017, but was not given a response until February
12, 2018. ECF 72-1. The ARP concerns Ervin's allegation
that “the medical department still are not refilling my
eye drop orders;” that he still has nosebleeds and
vomits up his food; and that the ENT put him on “single
cell status until my follow up with her at Mercy Hospital in
July of 2017 but this Medical Department here claims they
don't follow outside Doctor's orders.”
Id. at 2. The response to the ARP indicates that
Ervin's claim is meritorious in part because he was
ordered eye drops on September 28, 2017, but a
“non-formulary” was not completed until October
24, 2017; and because he was ordered nasal spray and pain
medication on July 17, 2017, but did not receive the nasal
spray. Id. at 1. Further, the response indicates
that Ervin received the eye drops and that during the time he
did not receive the prescribed pain medication in question,
he was on other pain medication and was therefore not harmed.
statements regarding a stay of this case are without any
basis in fact. Ervin's motion to stay (ECF 46) was
construed as a motion for extension of time and he was
granted to and including June 26, 2017, to file his
opposition response; the motion was otherwise denied. ECF 51;
ECF 52. Subsequent motions to stay and for extensions of time
(ECF 55; ECF 58) and for discovery (ECF 57) were also
addressed by this court. See ECF 60; ECF 61. The
court provided defendants with 21 days to provide
relevant medical records to Ervin, denied his
request that defendants provide him with records predating
the issue at hand,  and granted Ervin 21 days thereafter to
file his opposition. ECF 61.
court's Memorandum (ECF 60) addressing Ervin's
multiple motions, this court noted that Ervin's
“continued requests for stay and the current
broad-reaching, vague requests for discovery [had] begun to
border on improper dilatory tactics.” ECF 60 at 4.
Further, Ervin had made six requests for “additional
time despite having filed an affidavit in support of the
complaint (ECF 45) and correspondence addressing the
dispositive motions. ECF 47; ECF 48; ECF 49.” ECF 60 at
5. Ervin was then forewarned that any continued attempts to
delay the litigation of this case may result in sanctions, as
set forth under Fed. R. of Civ. Proc. 41(b). Id. In
short, the court provided Ervin with ample opportunity to
fully oppose the dispositive motions filed and ensured that
Ervin received medical records relevant to his
claim. See ECF 63 (status report from
defense counsel indicating medical records were provided).
His claim in the pending motion for reconsideration, to the
effect that this court acted prematurely in granting summary
judgment in favor of defendants, is simply without any
support in the record of this case.
respect to the “evidence” Ervin provides, it is
not evidence that was discovered after the entry of judgment
in favor of defendants and therefore does not present a basis
for relief under Rule 59(e). His assertion that the existence
of a recommendation from a doctor at Mercy Hospital regarding
his cell assignment is proof that the medical defendants were
deliberately indifferent to a serious medical need is a claim
he raised in this case, and it was rejected. See ECF
51 at 5, n. 3 (noting an outside doctor's recommendation
does not usurp the expertise of correctional officials). The
matters regarding delays in delivery of medication were also
considered in the context of the motions for summary
judgment. See ECF 68 at 7 (addressing request to
reinstate all medications); id. at 33 (noting that
undisputed, verified medical records offer no support for
Ervin's claims he was denied post-operative care).
disagreement with this court's analysis and conclusions
based on the evidence before it is not a sufficient basis to
alter or amend the court's decision. The motion fails to