1 WO SKC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 D.J. Szymanski, No. CV-21-00231-TUC-SHR 10 Plaintiff, 11 v. Order Denying Reconsideration 12 Centurion Health Incorporated, et al., 13 Defendants.
14 15 Plaintiff David J. (D.J.) Szymanski, who is currently confined in the Arizona State 16 Prison Complex (ASPC)-Tucson, brought this pro se civil rights action pursuant to 42 17 U.S.C. § 1983 based on injuries he allegedly suffered from Defendants’ alleged failures to 18 mitigate the risk to prisoners of contracting COVID-19 and Defendants’ alleged failures to 19 treat Plaintiff’s hepatitis C. (See generally Doc. 20.) Plaintiff asserted Eighth Amendment 20 conditions-of-confinement claims against Defendant David Shinn, the former Director of 21 the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR),1 and 22 Defendant Glen Pacheco, ASPC-Tucson Complex Warden, in their official capacities, and 23 Eighth Amendment medical care claims against Defendants Centurion Health 24 Incorporated, Naphcare, Incorporated, and several individual Centurion medical care staff. 25 (See generally id.; see also Doc. 49.) Before the Court is Plaintiff’s twice-filed Motion 26
27 1 The Court automatically substituted current ADCRR Director Ryan Thornell for 28 former Director Shinn in his official capacity pursuant to Federal Rule of Civil Procedure 25(d). (Doc. 81 at 7.) 1 Requesting the Court Reverse its Order Granting Defendants Shinn and Pacheco’s Motion 2 for Summary Judgment and Entry of Judgment. (See Doc. 94; Doc. 97.) 3 The Court will construe Plaintiff’s Motion as a motion for reconsideration and deny 4 the Motion. 5 I. Governing Standard 6 The Court has discretion to reconsider and vacate a prior order. See Barber v. 7 Hawai’i, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 8 394, 396 (9th Cir. 1992). “The Court will ordinarily deny a motion for reconsideration of 9 an Order absent a showing of manifest error or a showing of new facts or legal authority 10 that could not have been brought to its attention earlier with reasonable diligence.” LRCiv 11 7.2(g)(1). Any motion for reconsideration must specifically identify the matters that “were 12 overlooked or misapprehended by the Court . . . .” Id. If “any new matters [are] being 13 brought to the Court’s attention for the first time,” the movant must identify “the reasons 14 they were not presented earlier, and any specific modifications being sought in the Court’s 15 Order.” Id. “No motion for reconsideration of an Order may repeat any oral or written 16 argument made . . . in support of or in opposition to the motion that resulted in the Order.” 17 Id. 18 “Absent good cause shown,” a motion for reconsideration must be filed “no later 19 than fourteen (14) days after the date of the filing of the Order that is the subject of the 20 motion.” LRCiv. 7.2(g)(2). 21 II. Discussion 22 In his Motion, Plaintiff seeks relief from the Court’s orders granting Defendants’ 23 Motion for Summary Judgment “and any other orders” granting entry of judgment 24 “[p]ursuant to Rule 59 of the Federal Rules of Civil Procedure,” or any other applicable 25 statute. (See Doc. 94 at 1; Doc. 97 at 1.) The Court infers Plaintiff seeks reconsideration 26 of the Court’s September 15, 2023 Order in which the Court granted summary judgment 27 to Defendants Thornell and Pacheco on Plaintiff’s conditions-of-confinement claims and 28 dismissed those claims and Defendants Thornell and Pacheco with prejudice. (See Doc. 1 81.) 2 As noted, absent a showing of good cause, a motion for reconsideration must be 3 filed within 14 days of the order for which the party seeks reconsideration. LRCiv 4 7.2(g)(2). Plaintiff does not explain why he waited nearly 8 months to seek reconsideration 5 of the Court’s September 15, 2023 Order. In an apparent attempt to justify the delay, 6 Plaintiff only generally claims, after moving from the Phoenix Complex on December 6, 7 2023, he has “continually received all legal mail from this District Court late” or otherwise 8 “hasn’t received [his] legal mail at all.” (See Doc. 94 at 2; Doc. 97 at 2.) Plaintiff does not 9 say he did not receive the Court’s Order dated September 15, 2023, which predated his 10 claimed December 6, 2023, move from the Phoenix Complex by nearly 3 months, nor does 11 he explain why he was unable to seek reconsideration of that Order until now. Because 12 Plaintiff has not shown good cause for delay, the Court will summarily deny the Motion as 13 untimely. 14 In addition, the Court would deny Plaintiff’s Motion on the merits. As an initial 15 matter, although Plaintiff states he “is pleading with this Court to correct a clear error of 16 [l]aw and to prevent [m]anifest injustice” (Doc. 94 at 1−2; Doc. 97 at 1−2), he does not 17 identify any clear errors of law or specify any issues he believes the Court overlooked or 18 misapprehended in its summary judgment Order. See LRCiv 7.2(g)(1). He also does not 19 identify any “new facts or legal authority that could not have been brought to [the Court’s] 20 attention earlier with reasonable diligence.” Id. Instead, he sets forth facts he either already 21 relied on or could have relied on in his response to Defendants’ Motion for Summary 22 Judgment, and he makes arguments he either made or could have made at that time that the 23 Court already rejected. (See Doc. 94 at 2−8; Doc. 97 at 2−8.) Mere disagreement with the 24 Court’s prior Order is not grounds for reconsideration. 25 Plaintiff also states he is “asking Judge Rash to amend” his Complaint, which 26 Plaintiff asserts will allow Judge Rash to “[r]everse” the Court’s Order, “rule in favor” of 27 Plaintiff, and “order all Defendants to pay monetary damages,” or “at the very least,” 28 schedule a settlement conference between Plaintiff and Defendants. (See Doc. 94 at 4; 1 Doc. 97 at 4.) While vague, Plaintiff’s request the Court amend his Complaint appears 2 related to his statement that, when he filed his Complaint, he was unaware “he needed to 3 address the fact . . . he would be seeking monetary damages” from Defendants, which he 4 thought was, most times, “already inferred.” (Doc. 94 at 2; Doc. 97 at 2.) 5 Even inferring Plaintiff intended to seek monetary damages from Defendants 6 Thornell and Pacheco, amendment on this ground would be futile because Plaintiff is not 7 entitled to damages on his claims against these Defendants. As set forth in the Court’s 8 initial screening Order, Plaintiff stated only official capacity claims against these 9 Defendants based on the State’s allegedly deliberately indifferent COVID-19 policies; he 10 did not allege any facts showing either Defendant was personally involved in the alleged 11 deprivations of his rights that would state claims against them in their individual capacities. 12 (See Doc. 8 at 5, 5−6 n.2.) Absent such claims, Plaintiff is not entitled to damages from 13 either of these Defendants. (See id. at 5−6 n.2.) 14 Plaintiff also cannot seek damages against Defendants Thornell and Pacheco in their 15 official capacities because suing a state official in his official capacity is no different from 16 suing the State, and under the Eleventh Amendment to the Constitution of the United 17 States, a state or state agency may not be sued in federal court without its consent. 18 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO SKC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 D.J. Szymanski, No. CV-21-00231-TUC-SHR 10 Plaintiff, 11 v. Order Denying Reconsideration 12 Centurion Health Incorporated, et al., 13 Defendants.
14 15 Plaintiff David J. (D.J.) Szymanski, who is currently confined in the Arizona State 16 Prison Complex (ASPC)-Tucson, brought this pro se civil rights action pursuant to 42 17 U.S.C. § 1983 based on injuries he allegedly suffered from Defendants’ alleged failures to 18 mitigate the risk to prisoners of contracting COVID-19 and Defendants’ alleged failures to 19 treat Plaintiff’s hepatitis C. (See generally Doc. 20.) Plaintiff asserted Eighth Amendment 20 conditions-of-confinement claims against Defendant David Shinn, the former Director of 21 the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR),1 and 22 Defendant Glen Pacheco, ASPC-Tucson Complex Warden, in their official capacities, and 23 Eighth Amendment medical care claims against Defendants Centurion Health 24 Incorporated, Naphcare, Incorporated, and several individual Centurion medical care staff. 25 (See generally id.; see also Doc. 49.) Before the Court is Plaintiff’s twice-filed Motion 26
27 1 The Court automatically substituted current ADCRR Director Ryan Thornell for 28 former Director Shinn in his official capacity pursuant to Federal Rule of Civil Procedure 25(d). (Doc. 81 at 7.) 1 Requesting the Court Reverse its Order Granting Defendants Shinn and Pacheco’s Motion 2 for Summary Judgment and Entry of Judgment. (See Doc. 94; Doc. 97.) 3 The Court will construe Plaintiff’s Motion as a motion for reconsideration and deny 4 the Motion. 5 I. Governing Standard 6 The Court has discretion to reconsider and vacate a prior order. See Barber v. 7 Hawai’i, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 8 394, 396 (9th Cir. 1992). “The Court will ordinarily deny a motion for reconsideration of 9 an Order absent a showing of manifest error or a showing of new facts or legal authority 10 that could not have been brought to its attention earlier with reasonable diligence.” LRCiv 11 7.2(g)(1). Any motion for reconsideration must specifically identify the matters that “were 12 overlooked or misapprehended by the Court . . . .” Id. If “any new matters [are] being 13 brought to the Court’s attention for the first time,” the movant must identify “the reasons 14 they were not presented earlier, and any specific modifications being sought in the Court’s 15 Order.” Id. “No motion for reconsideration of an Order may repeat any oral or written 16 argument made . . . in support of or in opposition to the motion that resulted in the Order.” 17 Id. 18 “Absent good cause shown,” a motion for reconsideration must be filed “no later 19 than fourteen (14) days after the date of the filing of the Order that is the subject of the 20 motion.” LRCiv. 7.2(g)(2). 21 II. Discussion 22 In his Motion, Plaintiff seeks relief from the Court’s orders granting Defendants’ 23 Motion for Summary Judgment “and any other orders” granting entry of judgment 24 “[p]ursuant to Rule 59 of the Federal Rules of Civil Procedure,” or any other applicable 25 statute. (See Doc. 94 at 1; Doc. 97 at 1.) The Court infers Plaintiff seeks reconsideration 26 of the Court’s September 15, 2023 Order in which the Court granted summary judgment 27 to Defendants Thornell and Pacheco on Plaintiff’s conditions-of-confinement claims and 28 dismissed those claims and Defendants Thornell and Pacheco with prejudice. (See Doc. 1 81.) 2 As noted, absent a showing of good cause, a motion for reconsideration must be 3 filed within 14 days of the order for which the party seeks reconsideration. LRCiv 4 7.2(g)(2). Plaintiff does not explain why he waited nearly 8 months to seek reconsideration 5 of the Court’s September 15, 2023 Order. In an apparent attempt to justify the delay, 6 Plaintiff only generally claims, after moving from the Phoenix Complex on December 6, 7 2023, he has “continually received all legal mail from this District Court late” or otherwise 8 “hasn’t received [his] legal mail at all.” (See Doc. 94 at 2; Doc. 97 at 2.) Plaintiff does not 9 say he did not receive the Court’s Order dated September 15, 2023, which predated his 10 claimed December 6, 2023, move from the Phoenix Complex by nearly 3 months, nor does 11 he explain why he was unable to seek reconsideration of that Order until now. Because 12 Plaintiff has not shown good cause for delay, the Court will summarily deny the Motion as 13 untimely. 14 In addition, the Court would deny Plaintiff’s Motion on the merits. As an initial 15 matter, although Plaintiff states he “is pleading with this Court to correct a clear error of 16 [l]aw and to prevent [m]anifest injustice” (Doc. 94 at 1−2; Doc. 97 at 1−2), he does not 17 identify any clear errors of law or specify any issues he believes the Court overlooked or 18 misapprehended in its summary judgment Order. See LRCiv 7.2(g)(1). He also does not 19 identify any “new facts or legal authority that could not have been brought to [the Court’s] 20 attention earlier with reasonable diligence.” Id. Instead, he sets forth facts he either already 21 relied on or could have relied on in his response to Defendants’ Motion for Summary 22 Judgment, and he makes arguments he either made or could have made at that time that the 23 Court already rejected. (See Doc. 94 at 2−8; Doc. 97 at 2−8.) Mere disagreement with the 24 Court’s prior Order is not grounds for reconsideration. 25 Plaintiff also states he is “asking Judge Rash to amend” his Complaint, which 26 Plaintiff asserts will allow Judge Rash to “[r]everse” the Court’s Order, “rule in favor” of 27 Plaintiff, and “order all Defendants to pay monetary damages,” or “at the very least,” 28 schedule a settlement conference between Plaintiff and Defendants. (See Doc. 94 at 4; 1 Doc. 97 at 4.) While vague, Plaintiff’s request the Court amend his Complaint appears 2 related to his statement that, when he filed his Complaint, he was unaware “he needed to 3 address the fact . . . he would be seeking monetary damages” from Defendants, which he 4 thought was, most times, “already inferred.” (Doc. 94 at 2; Doc. 97 at 2.) 5 Even inferring Plaintiff intended to seek monetary damages from Defendants 6 Thornell and Pacheco, amendment on this ground would be futile because Plaintiff is not 7 entitled to damages on his claims against these Defendants. As set forth in the Court’s 8 initial screening Order, Plaintiff stated only official capacity claims against these 9 Defendants based on the State’s allegedly deliberately indifferent COVID-19 policies; he 10 did not allege any facts showing either Defendant was personally involved in the alleged 11 deprivations of his rights that would state claims against them in their individual capacities. 12 (See Doc. 8 at 5, 5−6 n.2.) Absent such claims, Plaintiff is not entitled to damages from 13 either of these Defendants. (See id. at 5−6 n.2.) 14 Plaintiff also cannot seek damages against Defendants Thornell and Pacheco in their 15 official capacities because suing a state official in his official capacity is no different from 16 suing the State, and under the Eleventh Amendment to the Constitution of the United 17 States, a state or state agency may not be sued in federal court without its consent. 18 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). State officials may, 19 however, be sued in their official capacities for prospective injunctive relief because 20 “official-capacity actions for prospective relief are not treated as actions against the State.” 21 Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); see also Flint v. Dennison, 488 F.3d 22 816, 825 (9th Cir. 2007) (“[A] suit for prospective injunctive relief provides a narrow, but 23 well-established, exception to Eleventh Amendment immunity.”). Because this exception 24 does not apply to claims for damages, the Court did not err when it found Plaintiff’s claims 25 against Thornell and Pacheco were limited to prospective injunctive relief. (See Doc. 81 26 at 6.) 27 . . . . 28 . . . . 1 For the above reasons, 2 IT IS ORDERED Plaintiff's twice-filed Motion Requesting the Court Reverse its Order Granting Defendants Shinn and Pacheco's Motion for Summary Judgment and Entry of Judgment (Doc. 94; Doc. 97) is DENIED. 5 6 Dated this 2nd day of July, 2024. 7 8 ff 9 Ai 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-