United States District Court, D. New Jersey
IVAN G. MCKINNEY, Plaintiff,
DR. HEMSLEY, et al., Defendants.
OPINION & ORDER
before the Court is pro se Plaintiff Ivan G.
McKinney's May 31, 2019 letter application seeking
reconsideration (at DE 102) of the undersigned's March
20, 2019 opinion and order (at DEs 100 and 101, respectively)
granting summary judgment in favor of defendants on all of
McKinney's then-still-pending claims in this civil rights
matter. McKinney's May 31st letter, reads, in its
entirety, as follows:
I received [the Court's] order granting defendant's
motion for summary judgment. I desire to ask this court for
reconsideration. And as this time[, ] I am making such
request. I gave to Dr. Hemsley and my attorney a copy of Dr
Reyes[' 2010] prescription filed with [University of
Medicine and Dentistry of New Jersey ("UMDNJ")]
Hospital. This was the prescription she faxed [there] for my
umbilical hernia surgery. I am in the process of obtaining
this from [UMDNJ]. And as you noted, I did not attach that as
evidence. Please, accept my request for reconsideration and
allow me at least 30 days to provide such evidence. Dr.
Hemsley and [Bergen County Jail] administration [were] aware
that Dr. Shah and Dr. Reyes ordered surgery. And in turn they
were guilty of deliberate indifference. And, thus this Court
should reconsider its decision once I provide the evidence.
(DE 102.) McKinney's reconsideration application will be
denied because it is both untimely and substantively
District of New Jersey, motions for reconsideration can be
made pursuant to Local Civil Rule 7.1 (i). The rule provides
that such motions must be made within 14 days of the entry of
an order. Substantively, a motion for reconsideration is
viable due to (1) an intervening change in the controlling
law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or
prevent manifest injustice. Carmichael v. Everson,
No. 03-4787, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004)
(citations omitted). Relief under this rule is inappropriate
when a party merely disagrees with a court's ruling or
when a party simply wishes to re-argue or re-hash its
original motion. Sch. Specialty, Inc. v. Ferrentino,
No. 14-4507, 2015 WL 4602995, *2-3 (D.N.J. July 30, 2015);
see also Florham Park Chevron, Inc. v. Chevron
U.S.A., 680 F.Supp. 159, 162 (D.N.J. 1988). Moreover,
reconsideration is not an opportunity to raise matters that
could have been raised before the original decision was
reached. Bowers v. NCAA, 130 F.Supp.2d 610, 613
(D.N.J. 2001). Indeed, the Third Circuit has indicated that
"Rule 7.1(i) motions are appropriate 'only
where dispositive factual matters or controlling decisions of
law were presented to the court but not
considered.'" Tucker v. I'Jama, 404
Fed.Appx. 580, 581 n.1 (3d Cir. 2010) (quoting Khair v.
Campbell Soup Co., 893 F.Supp. 316, 337 (D.N.J. 1995)
(emphasis added). Ultimately, reconsideration is an
"extraordinary remedy" that is granted "very
sparingly." Bracken v. Ashcroft, 2003 WL
22303078, at *2 (D.N.J. Oct. 7, 2003) (citations omitted).
initial matter, McKinney's May 31, 2019 reconsideration
application is untimely because he did not file it within
fourteen days after March 20, 2019, the date on which my
summary judgment order and opinion were filed. This fact
alone would provide a sufficient basis to deny
reconsideration. See, e.g., Tucker, 404 Fed.Appx. at
581; Testa v. Hoban, No. 16-55, 2018 WL 1091290, at
*2 (D.N.J. Feb. 28, 2018).
reconsideration application also fails to provide any
adequate substantive basis for relief. A motion for
reconsideration is not an opportunity to present evidence
that could have been presented before my original decision
was reached. Bowers, 130 F.Supp.2d at 613. McKinney
acknowledges that he has never provided the Court with the
evidence underlying his reconsideration request,
i.e., the prescription for hernia surgery which Dr.
Reyes purportedly wrote and faxed to UMDNJ in or around 2010.
(See DE 102) McKinney has clearly been aware of the
existence of that prescription for some nine years, and has
had ample opportunity to obtain a copy and submit for
consideration on summary judgment.
rate, this prescription, were I to consider it now, would not
affect my analysis of the deliberate-indifference issue.
Indeed, in my March 20, 2019 opinion, I expressly noted the
existence of that prescription:
It is true that Dr. Shah diagnosed McKinney with an
incarcerated hernia that required surgery in 2010. McKinney
himself, however, put off surgery for many months.
Thereafter, on multiple occasions in 2012 and 2013. Dr.
Hemsley diagnosed McKinney's hernia as non-incarcerated
and susceptible to conservative treatment. The record
evidence is clear that Hemsley "formed a medical
judgment that [McKinney's] hernia was reducible without
surgery." Brown [v. Beard, 445 Fed.Appx. 453,
455 (3d. Cir. 2011)]. That Dr. Shah's diagnosis and
course of treatment differed from Dr. Hemsley's does not,
in and of itself, provide a basis to conclude that Hemsley
acted with constitutionally-actionable deliberate
indifference to McKinney's hernia.
(DE 100 at 27.)
McKinney's May 31, 2018 application for reconsideration
fails to provide a basis to grant that "extraordinary
remedy." My summary judgment rulings remain in full
force and effect.
foregoing reasons, and for good cause shown, IT IS on this
10th day of June, 2019, ORDERED
that the Clerk of the Court shall reopen this matter for
purposes of considering Mr. McKinney's reconsideration
application; and it is further
that Mr. McKinney's May 31, 2018 application for
reconsideration (DE 102) is DENIED as
untimely, and in the alternative on substantive grounds; and
it is further
that the Clerk shall serve a copy of this Opinion & Order
on Mr. McKinney by regular mail and shall ...