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Mark Vickrey v. John Erbst

March 10, 2011

MARK VICKREY, PLAINTIFF,
v.
JOHN ERBST, REC. DIR.; KIM JONES, WARDEN; DR. GARRETT; DR. HILL; AND NURSE PRAC. RORY YORK, OF THE MEDICAL DEPARTMENT OF ICIO, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

ORDER

Pending before the Court are two post-judgment motions filed by the parties. Having reviewed the motions, responses, and the record in this case, the Court has determined that the motions are suitable for disposition without oral argument. Accordingly, the Court enters the following Order.

PLAINTIFF'S MOTION FOR RECONSIDERATION

OF DISMISSAL WITH PREJUDICE

1. Background

Plaintiff, an inmate, alleges that between September and October 2006, while he was playing flag football in the recreation yard of the Idaho Correctional Institution in Orofino, Idaho (ICI-O), another inmate, Ferrill Arnold, intentionally jumped on Plaintiff's neck and back, knocking him unconscious and injuring the side of his back and his spine.

Plaintiff brought suit against Warden Kim Jones and Recreation Director John Erbst, alleging that they failed to protect him from a serious risk of harm and failed to take proper action after his injury. Plaintiff also sued Dr. Steven Garrett and Nurse Practitioner Rory York, alleging that they failed to provide him with proper medical care after the incident. (Second Amended Complaint, Dkt. 11.) Defendants filed Motions for Summary Judgment (Dkt. 81 & 82), which the Court granted. (Dkt. 109.) After judgment was entered, Plaintiff requested that the Court reconsider the rulings in that Memorandum Decision and Order, dated May 24, 2010. Plaintiff filed his Motion for Reconsideration within ten days of entry of the Order, on June 8, 2010 (mail box rule).

2. Standard of Law

In Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000), the Ninth Circuit Court of Appeals clarified the limited use of a Rule 59(e) motion:

Although Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources."

12 James Wm. Moore et al., Moore's Federal Practice § 59.30[4] (3d ed. 2000). Indeed, "a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. See id.

3. Discussion

Because Plaintiff is an inmate who has no legal training and limited access to resources, the Court will consider his newly-submitted evidence without probing whether Plaintiff could have submitted it earlier in the case. For this same reason, Defendants' Motion to Strike will be denied, and the Court will ...


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