United States District Court, D. Montana, Billings Division
Timothy J. Cavan United States Magistrate Judge
before the Court is Defendants' Fed.R.Civ.P. 56 Motion
for Summary Judgment. See, (Doc. 42.) For the reasons
discussed herein, the Court will grant Defendants'
summary judgment motion.
pending are three outstanding motions from Fails, (Docs. 35,
37 & 55), as well as Defendants' motion to modify.
(Doc. 51.) Each will be addressed in turn.
Fails' Outstanding Motions
filed a Motion for a Protective Order alleging that
Defendants were attempting to "oppress, harass, cause
undue burden and expense" upon Fails with their
purportedly irrelevant interrogatories and production
requests in violation of Fed.R.Civ.P. 26. (Doc. 35 at 2-3.)
Defendants responded by alleging that Fails did not comply
with the meet and confer requirements of Rule 26(c)(1), and
further contended that the information sought was
discoverable and relevant to the Fails' compensatory
damages claim. (Doc. 40 at 2-3.) Fails did not reply.
also filed a motion to compel, seeking an order from this
Court directing the Defendants to respond to Fails'
Interrogatory No. 4. The interrogatory at issue apparently
Please describe in detail of all civil rights violations,
constitutional rights violations, grievances, civil
complaints, criminal complaints, disciplinary, etc., alleging
any type of official misconduct, and/or similar claims as are
alleged in this current 42 U.S.C. §1983, from the
beginning of each of the named defendants in this 42 U.S.C.
§1983 from the date of their chosen profession,
including any state, local, or federal agencies.
(Doc. 37 at 2.) In response, Defendants again asserted Fails
made no effort to comply with Rule 37(a)(1), which requires
that a motion to compel "must include a certification
that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action." (Doc. 39 at 1-2.) Because Fails did not comply
with the mandatory prerequisites of the Rule, Defendants
request that the Court deny Fails' motion. Id.
at 2. Fails did not reply.
Court finds that the Defendants have demonstrated that Fails
did not comply with the meet and confer requirement of the
Federal Rules of Civil Procedure relative to discovery
motions. This requirement is also incorporated into this
Court's Local Rules, which provide: "[t]he court
will deny any discovery motion unless the parties have
conferred concerning all disputed issues before the motion is
filed." L.R. 26.3(c). Accordingly, Fails' Motion for
Protective Order and Motion to Compel will both be denied.
Moreover, as set forth below, Defendants' Motion for
Summary Judgment will be granted on grounds unrelated to
Fails' discovery disputes. Thus, at this juncture, both
of Fails' motions are moot.
has also filed a motion requesting that this Court reconsider
its prior denial of his motion for summary judgment. (Doc.
55.) While motions to reconsider are left to the discretion
of the district court, Herbst v. Cook, 260 F.3d
1039, 1044 (9th Cir. 2001); Barber v.
Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994),
they are also generally disfavored. See, Northwest
Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d
918, 925-26 (9th Cir. 1988). "The purpose of
a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence."
Harsco Corp. v. Zlotnicki, 770 F.2d 906, 909
(3rd Cir. 1985), cert, denied, 476 U.S. 1171
(1986). Disagreement with a Court's order is an
insufficient basis for reconsideration, and such a motion
should not be used to make new arguments or to ask the Court
to rethink its prior analysis. See e.g., Above the Belt,
Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983) (holding that "Plaintiff improperly used
the motion to reconsider to ask the Court to rethink what the
Court had already thought through - rightly or
Local Rule 7.3 provides:
(a) Leave of Court Required. Before the entry of a judgment
adjudicating all of the claims and the rights and liabilities
of all the parties in a case, any party may make a motion
before a judge requesting that the judge grant the party
leave to file a motion for reconsideration of any
interlocutory order made by that judge on any ground set
forth in L.R. 7.3. (b)(1) or (2). No. party may file a motion
for reconsideration without prior leave of court.
(b) Form and Content of Motion for Leave. A motion for leave
to file a motion for reconsideration must be limited to seven
pages and must specifically meet at least one of the
following two criteria:
(1)(A) the facts or applicable law are materially different
from the fact or applicable law that the parties presented to
the court before entry of the order for which reconsideration
is sought, and (B) despite the exercise of reasonable
diligence, the party applying for reconsideration did not
know such fact or law before entry of the order; or
(2) new material facts emerged or a change of law occurred
after entry of the order.
(c) Prohibition Against Repetition of Argument. No. motion
for leave to file a motion for reconsideration may repeat any
oral or written argument made by the applying party before
entry of the order. Violation of this restriction subjects
the offending party to appropriate sanction.
filing is not in compliance with the procedural requirements
of the Local Rules. He did not file a motion for leave to
file a motion for reconsideration. But even construing
Fails' filing liberally and excusing his filing error, he
has still violated the prohibition of L.R. 7.3(c) by merely
repeating the same arguments made prior to entry of the
did not present any newly discovered evidence or material
facts to the Court. Fails simply explains that he disagrees
with this Court's analysis, and he reiterates his belief
that the Defendants' general denial of his claims as set
forth in their Answer is inadequate and should result in
summary judgment in his favor. (Doc. 55 at 3-4.) Fails has
provided no legitimate legal basis for this Court to
reconsider its prior order denying him summary judgment.
There has been no "mistake, inadvertence, surprise, or
excusable neglect" on the part of the Court; no
"newly discovered evidence"; no void judgment; and
no change in law or manifest legal error. Fed.R.Civ.P. 60(b).
short, Fails is not entitled to relief from the Court's
prior order. Fails is simply attempting to re-litigate issues
the Court previously considered when denying his motion for
summary judgment; such action is improper. Fails' Motion
for Reconsideration will also be denied.
Defendants' Motion to Modify
have filed a Motion to Modify Statement of Undisputed Facts
in which they seek to replace the unredacted Affidavit of
Undersheriff Roos (Doc. 44-1 at 1-94), with an identical
document containing necessary redactions. See generally,
(Doc. 51.) While Fails apparently takes no issue with
substituting the redacted affidavit, he seeks to have an
additional document, "Exhibit A," added to the
record. See generally, (Doc. 52.) Fails' filing is
their motion, Defendants seek appropriate redactions to
comply with Fed.R.Civ.P. 5.2. The Defendants' request is
a reasonable and will be granted. The Clerk of Court will be
directed to place Document 44-1 under seal. Defendants shall
file Document 51-1 as a supplement to Defendants'
Statement of Undisputed Facts (Doc. 44).
John Daniel Fails, Jr. was incarcerated at the Custer County
Detention Center ("CCDC") in Miles City, Montana,
from June 13, 2017, to August 1, 2017. Defendant Tony
Harbaugh is the Sheriff of Custer County, Defendant Pat Roos
is the Custer County Undersheriff, and Defendant Roland
McGrath (identified as "Mr. Roland" in the
complaint) is the Detention Sergeant of the CCDC. Defendant
Kim Jerke is a registered nurse who provides medical services
for inmates incarcerated at CCDC.
is a Type I diabetic. He alleges he received inappropriate
care for his diabetes while incarcerated at CCDC. Fails
alleges that as a result of Defendants' actions, his
blood sugar dropped to dangerously low levels, which resulted
in two separate hospitalizations. Fails also claims that the
inadequate care received at CCDC resulted in diabetic foot
ulcers and bone infections, which required ongoing medical
care. This care included weeks of antibiotics, installation
of an intravenous PICC line, and amputation of the small toe
on his right foot. Fails also asserts he was segregated in a
holding cell as a form of punishment for his diabetes in
violation of the Americans with Disabilities Act
claims constitutional violations under 42 U.S.C. § 1983
and statutory violations under the ADA, 42 U.S.C.
§12132, thereby invoking the federal question
jurisdiction of this Court pursuant to 28 U.S.C. § 1331.
Applicable Law - Summary Judgment Standards
judgment is appropriate where the moving party demonstrates
the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law. See Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Material facts are those which may affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute as to a material fact is
genuine if there is sufficient evidence for a reasonable
fact-finder to return a verdict for the nonmoving party.
Id. "Disputes over irrelevant or unnecessary
facts will not preclude a grant of summary judgment." 71
W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n 809 F.2d 626, 630 (9th Cir. 1987).
party seeking summary judgment always bears the initial
burden of establishing the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. The moving party can
satisfy this burden in two ways: (1) by presenting evidence
that negates an essential element of the non-moving
party's case; or (2) by demonstrating that the non-moving
party failed to make a showing sufficient to establish an
element essential to that party's case on which that
party will bear the burden of proof at trial. Id. at
322-23. If the moving party fails to discharge this initial
burden, summary judgment must be denied, and the court need
not consider the non-moving party's evidence. Adickes
v. S. H. Kress & Co., 398 U.S. 144, 159-60(1970).
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). In attempting to establish the
existence of this factual dispute, the opposing party must
"go beyond the pleadings and by 'the depositions,
answers to interrogatories, and admissions on file,'
designate 'specific facts showing that there is a genuine
issue for trial.'" Celotex, 477 U.S. at 324 (quoting
Fed.R.Civ.P. 56(e)). The opposing party cannot defeat summary
judgment merely by demonstrating "that there is some
metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586; Triton Energy Corp.
v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995)
("The mere existence of a scintilla of evidence in
support of the nonmoving party's position is not
sufficient.") (citing Anderson, 477 U.S. at 252). In
deciding a motion for summary judgment, however, the Court
views the evidence in the light most favorable to the
non-moving party and draws all justifiable inferences in the
non-moving party's favor. Anderson, 477 U.S. at 255;
Betz v. Trainer Wortham & Co., Inc., 504 F.3d
1017, 1020-21 (9th Cir. 2007).
because Fails is proceeding pro se, the Court must construe
his documents liberally and give them "the benefit of
any doubt" with respect to Defendants' summary
judgment motions. Frost v. Symington, 197 F.3d 348,
352 (9th Cir. 1999). See also Erickson v.
Pardus 551 U.S. 89, 94 (2007).
Fails' Response/Verified Complaint/Sworn Statement
the requirements of Fed.R.Civ.P. 56, the Local Rules of this
Court require that a party moving for summary judgment file a
Statement of Undisputed Facts, setting forth each fact the
party relies upon to support its motion, with pinpoint
citations to the record. L.R. 56.1 (a). In turn, the
"party opposing a motion for summary judgment must file
a Statement of Disputed Facts simultaneously with and
separately from the response brief." L.R. 56.1 (b). The
Statement of Disputed Facts must address each of the moving
parties' Statement of Undisputed Facts and state whether
the fact is undisputed or disputed. If any fact is disputed,
the opposing party must "pinpoint cite to a specific
pleading, deposition, answer to interrogatory, admission or
affidavit before the court to oppose each fact." L.R.