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Neidig v. United States

January 26, 2009


The opinion of the court was delivered by: Susan Paradise Baxter Chief U.S. Magistrate Judge

Magistrate Judge Baxter


Presently pending before this Court is a filing that this Court has liberally construed as a Motion for Reconsideration.See Document # 39.


On August 21, 2007, Plaintiff, a prisoner incarcerated at FCI McKean, filed the instant action pro se. As Defendants, Plaintiff only named "Medical Staff, FCI Mckean [sic]" and "Staff, FCI Mckean [sic]." This lawsuit was filed as a combined Bivens/FTCA action. In his original complaint, Plaintiff alleges that unnamed staff at FCI McKean delayed in diagnosing and treating his appendicitis, and that prescribed medications interfered with the antibiotic treatment given to him at Bradford Regional Medical Center ("BRMC"), where he was eventually treated for appendicitis. Plaintiff raises an Eighth Amendment claim under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), alleging that unnamed prison staff were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. Further, Plaintiff alleges that the United States of America should be held liable for the medical negligence of its employees under the Federal Tort Claims Act.

Defendants filed a motion to dismiss or in the alternative for summary judgment which this Court granted in part and denied in part by Opinion and Order dated July 18, 2008. More specifically, the Bivens claim was dismissed due to Plaintiff's failure to exhaust in accordance with the Prison Litigation Reform Act, while the FTCA claim survived. This Court specifically directed that Plaintiff had until August 1, 2008, to correct the caption of the case to name the United States of America as the proper party-defendant. Plaintiff did not timely comply with that Order.

By Order dated September 3, 2008, Plaintiff was directed to show cause for his failure to name the United States of America as a Defendant in this action. The Order warned that failure to comply would result in the dismissal of this action. Thereafter, Plaintiff filed an Amendment naming the United States as a Defendant to this action.

On September 25, 2008, Defendant United States filed a motion for extension of time which was granted by this Court. On October 27, 2008, Plaintiff filed "Objections to Defendant's motion for extension of time to file a responsive pleading and/or dispositive motion." Document # 35. Liberally construing Plaintiff's filing, it appears that Plaintiff may have been unaware of this Court's Opinion and Order issued July 16, 2008 (Document # 28) dismissing his Bivens claim. Plaintiff was transferred from a federal facility to a state prison around this time which may explain why he did not receive this Opinion.

Plaintiff was given the opportunity to file a motion for reconsideration and brief in support of reconsideration. On December 16, 2008, Plaintiff filed "Objections and Challenge to Order dated July 18, 2008" [Document # 39] and thereafter, Defendants filed a Brief in Opposition [Document # 41].


"[M]otions for reconsideration should be granted sparingly; the parties are not free to relitigate issues the court has already decided." Williams v. City of Pittsburgh, 32 F.Supp.2d 236, 238 (W.D. Pa. 1998) citing Rottmund v. Continental Assurance Company, 813 F.Supp. 1104, 1107 (E.D. Pa. 1992); Glendon Energy Company v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993).

In his motion, Petitioner contends that reconsideration is warranted as to the dismissal of his Bivens claim because 1) the Bureau of Prisons could not have granted him the monetary relief he seeks through the grievance process and 2) that he was unable to obtain the required grievance forms in a timely manner due to "the high incedence [sic] of vacation time." Both of these arguments lack merit.

First, it is well settled that under the requirements of the Prison Litigation Reform Act, prisoners "must now exhaust administrative remedies even where the relief sought-monetary damages-cannot be granted by the administrative process." Woodford v. Ngo, 548 U.S. 81, 85 (2006) quoting Booth v. Churner, 532 U.S. 731, 734 (2001).

Next, in opposition to Plaintiff's second argument for reconsideration, Defendants have produced the Declaration of FCI-McKean Case Manager Robert Fair indicating that Plaintiff could have obtained grievance ...

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