United States District Court, D. Nevada
WAYNE A. PORRETTI, Plaintiff,
DZURENDA, et al., Defendants.
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE
this Court are Defendants' Motion for Reconsideration of
this Court's Order at ECF No. 106 (ECF No. 118), Motion
for Stay of Enforcement of Preliminary Injunction Pending the
Filing of and the Court's Decision on Defendants'
Motion for Reconsideration, and Any Necessary Appeal of this
Court's Order (ECF No. 132), Motion for Leave to File
Supplement to Defendants' Motion for Reconsideration (ECF
No. 139), and Emergency Motion for Clarification and
Expedited Decision Requested by June 10, 2019 (ECF Nos. 149,
150). The Court recognizes several additional pending motions
filed by Plaintiff and defers ruling on these motions at this
time. The Court grants Defendants' Emergency Motion and
issues the instant Order addressing Defendants' pending
is an inmate incarcerated in the Nevada Department of
Corrections and currently housed at Lovelock Correctional
Center. Plaintiff alleges that he is being denied necessary
anti-depressant and anti-psychotic medication and, as a
result, is suffering from depression, paranoia, delusions,
and hearing voices. Defendants challenge the Court's
order granting Plaintiff's Motion for Preliminary
Injunction and the Court's finding that medical
evaluation of Plaintiff constitutes necessary and appropriate
injunctive relief in this case.
Court denies Defendants' Motion for Reconsideration,
Motion for Stay of Enforcement of Preliminary Injunction, and
Motion for Leave to File Supplement for a few reasons. First,
the Court rejects Defendants' motions because Defendants
seek to relitigate this Court's factual and credibility
findings, especially the finding that Dr. Carroll was not a
credible witness. Second, Defendants seek to improperly
supplant this Court's established factual findings
regarding Plaintiff's treatment with their own version of
the facts. Defendants have, unfortunately, in their
submission repeatedly misstated this Court's findings and
evidence in the record, and the Court corrects these
misstatements here. Third, Defendants seek to present
additional new evidence which is either untimely or
unreliable. Fourth, Defendants' new evidence only
underscores the need for Plaintiff to receive immediate
psychiatric treatment from an impartial physician. Thus, the
Court finds that its issued preliminary injunction was and
remains appropriate and that a stay of the injunction is not
warranted during the pendency of Defendants' appeal. The
Court reviews its reasoning and holding in detail below.
Court will grant Defendants an additional seven
days to comply with is Order (ECF No. 130) for
medical evaluation given the appeal in this case.
PROCEDURAL & FACTUAL BACKGROUND
filed the initial complaint on June 23, 2017 and the
operative complaint on September 26, 2018. ECF Nos. 1, 16. On
January 9, 2019, Plaintiff filed the instant Motion for
Preliminary Injunction. ECF Nos. 32, 33.
Court held a hearing regarding the Motion for Preliminary
Injunction on January 18, 2019. ECF No. 44. The Court
received at that time from Defendants' counsel a CD
containing Plaintiffs' 613-page medical record, attached
also to Defendants' instant Motion for Reconsideration.
ECF No. 118, Exhibit A. The Court continued the hearing to
receive testimony from psychiatrist Carla Carroll, M.D., an
employee of the Nevada Department of Corrections
Court held a second hearing on January 29, 2019 and received
testimony from Dr. Carroll. ECF No. 48. On January 30, 2019,
the Court issued an order requesting additional medical
records and referring Plaintiff to the pro bono program for
appointment of counsel. ECF No. 50.
April 9, 2019, the Court held a status conference. ECF No.
103. The Court granted the Motion for Preliminary Injunction.
The Court stated that it would grant relief in the form of a
medical evaluation of Plaintiff, with Defendants to cover
costs. The Court expressed its willingness to appoint
psychiatrist Norton Roitman, M.D., based on his treatment
history with Plaintiff and his established record as a
medical expert with this Court. The Court permitted
Defendants to submit a list of additional contracted experts
by April 18, 2019 who could be selected to offer the Court a
parallel diagnosis and suggested regiment of treatment for
April 12, 2019, the Court issued an Order detailing its
findings and analysis in support of its decision to grant the
Motion for Preliminary Injunction. ECF No. 106. The Court
found that Dr. Carroll's diagnosis of Plaintiff and her
medical opinion that Seroquel and Wellbutrin are not
medically necessary for Plaintiff were not and are not
credible. Instead, the Court finds that the diagnoses and
prescriptions in Plaintiff's medical record are credible.
Id. at 3. The Court further found that Dr. Carroll
has met with Plaintiff on only one occasion and only over
videoconference for a brief period of time. Id. at
4. Dr. Carroll has never interacted with Plaintiff in person,
though she has been Plaintiff's treating physician for
many months and Plaintiff had sought additional meetings with
her. Id. The Court found that Dr. Carroll is an NDOC
employee and her opinion was biased by her employment and was
tailored to supporting Defendants' existing position that
Plaintiff does not need the medications he had been
previously prescribed. Id. at 3. The Court further
found that Plaintiff has severe mental health symptoms as
documented in his medical record. Id. at 4. Based on
these findings and others as detailed in the Court's
order, the Court determined that Plaintiff had established a
likelihood of success on the merits of his Eighth Amendment
deliberate indifference claim based on Defendants'
failure to properly diagnose and treat Plaintiff through
medication and treatment sessions and Defendants'
cessation of his prescribed medication without adequate
evaluation or monitoring of Plaintiff and his condition.
Id. at 5-7. The Court further found that Plaintiff
demonstrated a substantial likelihood of irreparable harm due
to the ongoing risk to his health and physical safety and
that the balance of equities and public interest favored
Plaintiff. Id. at 7-8.
Court therefore granted Plaintiff preliminary relief.
However, because the Court found no recent credible medical
judgment or prescription in the record, the Court did not
find it appropriate to simply order Defendants provide
Seroquel and Wellbutrin to Plaintiff, despite Plaintiff's
long medical history of safely utilizing these medications to
control his symptoms. Rather, the Court ordered a medical
evaluation to provide an updated diagnosis of Plaintiff's
condition and a recommended course of treatment, including
addressing the issue of whether Plaintiff's prior
prescriptions for Seroquel and Wellbutrin are medically
necessary in light of his medical history, diagnoses, and
present-day symptoms, and identify the existence of and
efficacy of alternative treatments. Id. at 8.
April 19, 2019, Defendants proposed that the independent
medical evaluation of Plaintiff be performed by Dr. Wade F.
Exum, a psychiatrist contracted with NDOC. ECF No. 113.
April 26, 2019, Defendants filed the instant Motion for
Reconsideration of this Court's Order at ECF No. 106. ECF
No. 118. Plaintiff responded on May 1, 2019 and Defendants
replied on May 8, 2019. ECF Nos. 122, 128.
8, 2019, the Court issued an Order finalizing the scope of
its preliminary relief. ECF No. 130. The Court found that it
was appropriate and necessary to order two in-person medical
evaluations of Plaintiff, one conducted by Dr. Roitman and
one conducted by Dr. Exum.
13, 2019, Defendants noticed their appeal of the Court's
Order issuing a preliminary injunction to the Ninth Circuit.
ECF No. 133. Also on May 13, 2019, Defendants filed the
instant Motion for Stay of Enforcement of Preliminary
Injunction Pending the Filing of and the Court's Decision
on Defendants' Motion for Reconsideration, and Any
Necessary Appeal of this Court's Order. ECF No. 132.
Plaintiff responded on May 17, 2019. ECF No. 138.
22, 2019, Defendants filed the instant Motion for Leave to
File Supplement to Defendants' Motion for
Reconsideration. ECF No. 139. Defendants filed an errata to
this motion containing a supplemental exhibit on May 29,
2019. ECF No. 144.
3, 2019, the Ninth Circuit held appellate proceedings in
abeyance pending this Court's resolution of
Defendants' Motion for Reconsideration. ECF No. 147. On
June 4, 2019, Defendants filed the instant Emergency Motion
for Clarification and Expedited Decision Requested by June
10, 2019. ECF Nos. 149, 150.
to Rule 60(b) of the Federal Rules of Civil Procedure, this
Court may relieve the parties from a judgment on various
grounds, including “mistake, inadvertence, surprise, or
excusable neglect, ” “newly discovered evidence
that, with reasonable diligence, could not have been
discovered in time, ” and “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b). Motions for
reconsideration are disfavored. LR 59-1(b). A movant may not
repeat arguments already presented. Id.
Motion for ...