Green 076282 v. Ryan

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Alfred Green, No. CV-18-00068-TUC-RM

10 Plaintiff, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Defendants. 14 15 On September 13, 2021, the Court granted summary judgment in favor of 16 Defendants (Doc. 187), and the Clerk of Court entered judgment accordingly (Doc. 188). 17 Currently pending before the Court is Plaintiff Alfred Green’s Motion to Reopen. (Doc. 18 196.)1 Defendant David Shinn responded in opposition. (Doc. 197.) For the following 19 reasons, the Motion to Reopen will be denied. 20 I. Background 21 On March 8, 2021, Defendant Corizon filed a Motion for Summary Judgment 22 (Doc. 127), to which Defendant David Shinn joined (Doc. 129). Plaintiff also filed a 23 Motion for Summary Judgment. (Doc. 133.) After the Motions for Summary Judgment 24 were fully briefed (Docs. 142, 144, 148, 155), Plaintiff filed multiple Motions stating that 25 he had received physical therapy in March and June 2021 but that the therapy had only 26 worsened his pain and had been discontinued. (Docs. 156, 157, 158, 159, 160, 161.) The 27 1 The Motion is actually titled: “To the Clerk of THE DISTRICT COURT to have case 28 remanded back to district court to be refiled.” In substance, the Motion seeks to reopen this case pursuant to Federal Rule of Civil Procedure 60(b)(2). 1 Court denied Plaintiff’s Motions, finding that Plaintiff had failed to show good cause to 2 supplement his summary judgment briefing and that Plaintiff had failed to attach any new 3 evidence, such as copies of medical records, to the Motions. (Doc. 167.) Plaintiff then 4 filed five additional Motions (Docs. 172, 173, 174, 175, 183), seeking to re-open 5 discovery to obtain his physical therapy records, seeking to compel third-party Centurion 6 to provide the records, and seeking the appointment of counsel to assist him with 7 obtaining and presenting the records. The Court denied the Motions, finding that there 8 were no exceptional circumstances warranting the appointment of counsel and that 9 Plaintiff had failed to show good cause to re-open discovery. (Doc. 186.) 10 On September 13, 2021, the Court granted Defendants’ Motion for Summary 11 Judgment and denied Plaintiff’s Motion for Summary Judgment. (Doc. 187.) The Court 12 found that the record sufficiently established the existence of a serious medical need for 13 purposes of Plaintiff’s Eighth Amendment medical-care claim. (Id. at 14.) However, the 14 Court further found that Corizon had not been deliberately indifferent to Plaintiff’s 15 serious medical need. (Id. at 14-16.) The Court noted that Plaintiff saw providers or 16 received treatment for his pain on at least 20 occasions from the date of the van accident 17 that allegedly caused Plaintiff’s injuries through April 2019; that he was offered at least 18 six different medications for pain, as well as a cane and knee sleeve; and that on multiple 19 occasions Plaintiff refused prescribed medication. (Id. at 15-17.) 20 Plaintiff filed a Notice of Appeal (Doc. 192), and then filed the pending Motion to 21 Reopen (Doc. 196). 22 II. Legal Standard 23 The Court may, on “motion and just terms,” relieve a party from a final judgment 24 for the following reasons: 25 1. mistake, inadvertence, surprise, or excusable neglect; 2. newly discovered evidence that, with reasonable diligence, could not have been 26 discovered in time to move for a new trial under Rule 59(b); 3. fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 27 misconduct by an opposing party; 4. the judgment is void; 28 1 5. the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively 2 is no longer equitable; or 6. any other reason that justifies relief. 3 Fed. R. Civ. P. 60(b). 4 Relief under Rule 60(b)(2) is appropriate only if: (1) the evidence at issue 5 constitutes “newly discovered evidence” within the meaning of the rule; (2) the movant 6 exercised due diligence to discover the evidence; and (3) the evidence is “of such 7 magnitude that production of it earlier would have been likely to change the disposition 8 of the case.” Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th 9 Cir. 1987). If the evidence was in the movant’s possession “before the judgment was 10 rendered it is not newly discovered.” Id. at 212 (quoting 11 Wright & Miller § 2859 11 (1973)). 12 III. Discussion 13 In his Motion to Reopen, Plaintiff asks that the Court reopen this case pursuant to 14 Federal Rule of Civil Procedure 60(b)(2) due to new evidence that was not in Plaintiff’s 15 possession at the time of discovery—namely, a therapist report and MRI result. (Doc. 16 196.) Plaintiff does not attach the evidence at issue to his Motion. 17 As discussed above, the Court has already addressed numerous prior Motions 18 regarding Plaintiff’s physical therapy records. Even if Plaintiff did not have the therapy 19 report in his possession prior to the entry of judgment in this case on September 13, 2021, 20 he was clearly aware of the existence of his therapy records prior to that date. Plaintiff 21 has not shown that he exercised due diligence to obtain the therapy report earlier. 22 Furthermore, even if Plaintiff could show that the therapy report and MRI result 23 constitute new evidence within the meaning of Rule 60(b)(2), and even if he could show 24 due diligence in obtaining the therapy report and MRI result, he has not shown that the 25 evidence is “of such magnitude that production of it earlier would have been likely to 26 change the disposition of the case.” Coastal Transfer Co.., 833 F.2d at 211. Plaintiff has 27 not attached the evidence to his Motion, nor has he described what the evidence shows. 28 To the extent that Plaintiff contends the evidence demonstrates a serious medical need, 1 || the Court already found on summary judgment that Plaintiff had demonstrated a serious medical need. (Doc. 187 at 14.) To the extent that Plaintiff contends the evidence || demonstrates that Corizon was deliberately indifferent to his serious medical need, he 4|| offers no support for such a contention. Accordingly, there is no basis for this Court to 5 || find that the therapy report and MRI result would have altered the reasoning or analysis 6 || contained in the Court’s September 13, 2021 Summary Judgment Order. 7 IT IS ORDERED that Plaintiff's Motion to Reopen (Doc. 196) is denied. 8 Dated this 11th day of February, 2022. 9 10 a, 12 TD 4 Wt Z □□ Honorable Rosemary Mafquez 13 United States District □□□□□ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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