Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Paul Eugene Rhodes, Plaintiff, vs. Quirino Valeros, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 04-0644-PHX-JAT (LOA) ORDER

Plaintiff Paul Eugene Rhodes filed a pro se 42 U.S.C. § 1983 action against 13 named
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Defendants (Doc. #81). The Motion for Summary Judgment filed by 12 of the Defendants
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was granted (Docs. ##56, 90). The Court also ordered Plaintiff to show good cause why
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Defendant Dennis Chenail should not be dismissed without prejudice due to the failure to
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serve him (Doc. #90). Plaintiff now has filed a Response to the Order, which will be
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construed as a Motion for Reconsideration, arguing that the Court erred in determining that
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his constitutional rights were not violated (Doc. #92). Plaintiff asserts that he had a right to
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be present at a teleconsultation, as provided by statute, and his absence from the conference
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resulted in deliberate indifference to his medical needs (Id.).
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Motions for reconsideration should be granted only in rare circumstances. School
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Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
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Reconsideration is appropriate when: "(1) There are material differences in fact or law from
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that presented to the Court and, at the time of the Court's decision, the party moving for
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reconsideration could not have known of the factual or legal differences through reasonable
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diligence; (2) There are new material facts that happened after the Court's decision; (3) There
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Case 2:04-cv-00644-JAT-LOA

Document 93

Filed 10/18/2006

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has been a change in the law that was decided or enacted after the Court's decision; or (4) The movant makes a convincing showing that the Court failed to consider material facts that were presented to the Court before the Court's decision." Motorola, Inc. v. J.B. Rogers Mechanical Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003). The Court determined that the 12 moving Defendants were not deliberately indifferent to Plaintiff's medical needs, granting their summary judgment motion (Doc. #90). The Court then screened and dismissed Plaintiff claim that his constitutional rights were violated because he was not present during a medical consultation, finding that Plaintiff could not demonstrate that his absence from the consultation resulted in any injury (Docs. ##81, 90). Plaintiff challenges that determination. However, Plaintiff does not present new evidence, there is no change in law, and the Court considered all material facts before it. See Motorola, Inc., 215 F.R.D. at 586. Plaintiff merely seeks to have this Court reconsider its original determination. Plaintiff's motion for reconsideration will be denied and, because Plaintiff has not served or shown good cause why he has failed to serve Defendant Chenail, Defendant Chenail will be dismissed without prejudice. IT IS ORDERED: (1) Plaintiff's Response/Answer (Doc. #92) is construed as a Motion for Reconsideration, and is denied. (2) Defendant Chenail is dismissed without prejudice. (3) The Clerk of Court must enter a judgment of dismissal of this action with prejudice. DATED this 17th day of October, 2006.

Case 2:04-cv-00644-JAT-LOA

-2Document 93 Filed 10/18/2006

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