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United States District Court, M.D. Pennsylvania

December 13, 2005.

DR. JOSEPH KORT, SCI-Coal Township; KAREN OHLER DOE, SCI-Somerset; DR. BAKER, SCI-Albion; and BRADLEY LORAH, SCI-Coal Township, Defendants.

The opinion of the court was delivered by: SYLVIA RAMBO, District Judge


Before the court is Plaintiff's motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (Doc. 149.) Plaintiff's motion requests the court to set aside its April 6, 2005 order that granted Defendants' motion for summary judgment on Plaintiff's Eighth Amendment claims.*fn1 For the reasons that follow, Plaintiff's motion will be denied.

Rule 60(b) provides for relief from judgment because of mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. Relief under Federal Rule 60(b)(6) "is available only in cases evidencing extraordinary circumstances." Reform Party of Allegheny County v. Dept. of Elections, 174 F.3d 305, 311 (3d. Cir. 1999) (quoting Martinez-McBean v. Government of Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977)). Furthermore, "intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)." Agostini v. Felton, 521 U.S. 203, 238 (1997).

  Plaintiff's motion relies upon pages 11-16 of a booklet Plaintiff refers to as "Questions and Answers [A]bout Knee [P]roblems." (Pl.'s 60(b) Motion at 1; Pl.'s Ex. A.) Plaintiff alleges that he just received said booklet and was not able to procure said booklet at an earlier time. Presumably Plaintiff seeks to assert that said booklet qualifies as newly discovered evidence.*fn2 While newly discovered evidence may form the basis of a Rule 60(b) motion, Rule 60(b) requires that the moving party has acted with due diligence.*fn3 While the court is cognizant that Plaintiff is in prison and proceeding pro se, the court is not convinced that Plaintiff has acted with the required due diligence. Specifically, this case has been ongoing for over three years. In that time, Plaintiff could have, through due diligence, acquired said booklet or information relevant to knee injuries.

  Regardless, the court will deny Plaintiff's motion. Plaintiff's "new evidence" is a booklet about knee injuries and their treatment. As he has previously argued, Plaintiff alleges that Defendants failed to acceptably treat his knee injury. Plaintiff relies upon said booklet to support his position. As provided in the memorandum accompanying the April 6, 2005 order, the court will not substitute its judgment for the judgment of medical professionals. It is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990); see also White v. Napoleon, 897 F.2d 103, 109, 110 (3d Cir. 1990) ("There may, for example, be several acceptable ways to treat an illness."). Moreover, a disagreement between Plaintiff and Defendants as to his diagnosis and treatment does not constitute deliberate indifference. Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987). Even if the Defendants' actions amounted to negligence, it does not constitute deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 104 (1976) ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). Plaintiff's arguments based on the "new evidence" echo the same arguments he presented in opposition to Defendants' motion for summary judgment. Essentially Plaintiff disagrees with the medical professionals as to the medical care he received; however, as previously stated in the April 4, 2005 memorandum and order, Plaintiff fails to allege a violation of his Eighth Amendment rights. Accordingly, Plaintiff's motion will be denied with respect to this issue.

  Finally, Plaintiff also seeks to challenge the court's April 4, 2005 memorandum and order based on his allegation that the court failed to properly consider his arguments and relevant Supreme Court precedent. With respect to Plaintiff's instant argument, the court notes that "a Rule 60(b) motion `may not be used as a substitute for an appeal, and that legal error, without more' does not warrant relief under that provision. . . ." U.S. v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003) (quoting Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988)). The court finds that Plaintiff's argument lacks merit; however, the court need not address its merits because it is not properly brought under a Rule 60(b) motion. Accordingly, Plaintiff's motion will be denied with respect to this issue. For the foregoing reasons, Plaintiff's Rule 60(b) motion will be denied. An appropriate order will issue. ORDER

  In accordance with the foregoing memorandum of law, IT IS HEREBY ORDERED THAT Plaintiff's motion pursuant to Federal Rule of Civil Procedure 60(b) is DENIED.


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