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Johnson v. Joseph Rush

February 5, 2010

MEL JOHNSON, PLAINTIFF,
v.
JOSEPH RUSH, P.A., ET AL., DEFENDANTS



The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania

(Chief Judge Kane)

MEMORANDUM

Plaintiff Mel Johnson ("Johnson"), currently an inmate confined at the Federal Detention Center, Philadelphia, Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983 against the following SCI-Mahanoy employees: Joseph Rush, Physician's Assistant; Maria J. Cerullo, Supervisor; and Sharon M. Burks, Grievance Officer. The matter proceeds on an amended complaint filed against Defendant Rush. (Doc. No. 51.) Presently pending are Plaintiff's motion seeking reconsideration of the Court's denial of his request for counsel (Doc. No. 60), and Defendant Rush's motion to dismiss the amended complaint (Doc. No. 56). For the reasons that follow, the motion for reconsideration will be denied, and the motion to dismiss will be granted in part and denied in part.

I. Background

In the original complaint, Plaintiff alleged that during a sick call visit to the infirmary at SCI-Mahanoy on April 25, 2005, Rush subjected him to cruel and unusual punishment when he used unnecessary force during the course of a rectal examination. (Doc. No. 1, Compl. at 4.) According to Plaintiff, he had attended sick call that day to receive follow-up care for hemorrhoids. Rush allegedly insisted on performing a rectal exam and when Plaintiff complained of pain, Rush smirked. Plaintiff also alleged that retaliation and claims that Rush manipulated the schedule so that he would be the only P.A. on duty whenever Plaintiff signed up for sick call. He claims that his fear of encountering Rush deterred him from seeking treatment, thus depriving him of medical care. Plaintiff also alleged that Defendant Cerullo, as Rush's supervisor, was responsible for Rush's conduct, and that Burks maliciously denied his grievance.

In screening the complaint the Court dismissed Cerullo and Burks from this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), but directed service of the complaint on Defendant Rush. (Doc. No. 8.) Thereafter, Rush filed a motion to dismiss the complaint. On September 26, 2007, the Court issued a Memorandum and Order granting the motion, finding that the complaint lacked allegations from which it could be inferred that the examination performed by Rush was inappropriate for Plaintiff's condition, or that Rush failed or refused to provide appropriate treatment for Plaintiff's hemorrhoids. (Doc. No. 22.)

On February 3, 2009, the United States Court of Appeals for the Third Circuit affirmed this Court's dismissal of Defendants Cerullo and Burks, but vacated the dismissal of the Eighth Amendment claim against Rush. The matter was remanded for further proceedings to allow Plaintiff the right to amend his complaint, as amendment was not necessarily futile. (Doc. No. 46.) Specifically, the Third Circuit found that this Court overlooked the possibility of a prison medical official administering an appropriate exam in an inappropriate manner, and that Plaintiff might have amended his complaint to plead additional facts regarding Rush's intent. (Id. at 4.)

Following the issuance of the Third Circuit's opinion, Plaintiff submitted a motion to amend the complaint and a motion for the appointment of counsel. The motion to amend was granted in accordance with the directive of the Third Circuit, and the motion for counsel was denied without prejudice. (Doc. No. 53.) An amended complaint was thereafter submitted on May 12, 2009. (Doc. No. 51.) The matter currently proceeds on the amended complaint.

In the amended complaint, Plaintiff contends that Rush was upset with him for filing a grievance against him with respect to the medical treatment he was receiving, and therefore retaliated against him on April 25, 2005, by deliberately jamming his finger in Plaintiff's rectum during the course of a hemorrhoidal examination, with the intention to inflict pain. (Doc. No. 51, Am. Compl. at 1.) He requests "any relief this court deems appropriate in favor of plaintiff." (Id. at 2.)

II. Discussion

A. Motion for Reconsideration

Plaintiff seeks reconsideration of the Court's decision on June 15, 2009, denying his request for the appointment of counsel in this action. (Doc. No. 53.) The well-established principles applied in deciding an inmate's motion for counsel were thoroughly set forth in the Court's earlier Memorandum and, as such, will not be repeated herein. Montgomery v. Pichak, 294 F.3d 492, 499 (3d Cir. 2002), citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). In applying the relevant factors, the Court found that the overall issues involved in this action are straightforward and involve the application of established legal principles to the factual situations at hand. Further, the Court found that the record demonstrates Plaintiff's capability in continuing to litigate this action without the assistance of counsel. He has filed motions and opposition briefs on his own, and has successfully pursued an appeal to the Third Circuit Court of Appeals. As such, his request for the appointment of counsel was denied, but without prejudice should future proceedings demonstrate the need for counsel. Plaintiff seeks reconsideration of the decision to deny him counsel.

A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)(citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT&T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996)(quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp.2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).

Plaintiff fails to demonstrate any of the applicable grounds for reconsideration. He does not set forth an intervening change in law, present new evidence, or argue the existence of a clear error of law or fact. He merely reargues arguments previously considered and rejected. He again states that he is a layperson unskilled in the law and believes this case will require expert witnesses. He argues that the appointment of counsel would simplify the matter. It is noted, however, that Plaintiff does admit he has the assistance of jailhouse lawyers in this action. He comes forth with no reason for reconsidering the decision to deny counsel. The record continues to give every indication that Plaintiff is capable of litigating this action on his ...


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