United States District Court, N.D. Mississippi, Greenville Division
M. VIRDEN UNITED STATES MAGISTRATE JUDGE.
plaintiff has filed two motions that are pending before the
Court: (1) a “Motion to Amend Memorandum Opinion and
Order, ” which the Court construes as a motion for
reconsideration; and (2) an “Amended Complaint, ”
which the Court construes as a motion for leave to amend the
complaint filed in this action. See Docs. #23 &
#24. Upon consideration, the motions are denied for the
reasons as stated herein.
January 23, 2018, this Court entered a Memorandum Opinion and
Order regarding the plaintiff's claims that the
defendants have denied him appropriate medical treatment in
violation of his constitutional and federal statutory rights.
Doc. #17. While the Court allowed the plaintiff's
constitutional claims to proceed against certain defendants,
it also dismissed certain defendants and the plaintiff's
statutory claims. Id. The plaintiff now seeks
reconsideration of the portion of the Memorandum Opinion and
Order that (1) dismissed defendants Pelicia Hall and Richard
Pennington and (2) dismissed the plaintiff's claim under
the Americans with Disabilities Act (“ADA”) and
the Rehabilitation Act (“RA”). See Doc.
#23. He also seeks to amend his complaint to clarify that
each defendant named in this lawsuit personally knew of his
medical problems and deliberately disregarded his requests
for adequate medical treatment. Doc. #24.
plaintiff's request for reconsideration of the
Court's Memorandum Opinion and Order is governed by
Federal Rule of Civil Procedure 59(e). An order granting Rule
59(e) relief is appropriate when: (1) there has been an
intervening change in the controlling law, (2) where the
movant presents newly discovered evidence that was previously
unavailable, or (3) to correct a manifest error of law or
fact. Schiller v. Physicians Resource Group, Inc.,
342 F.3d 563, 567 (5th Cir. 2003). A Rule 59(e) motion cannot
be used to raise theories or arguments which could, and
should, have been made earlier, nor can it be used to re-urge
matters that have already been advanced by a party.
Helena Laboratories Corp. v. Alpha Scientific Corp.,
483 F.Supp.2d 538, 539 (E.D. Tex. 2007) (citation and
quotation marks omitted).
Hall and Pennington
plaintiff first maintains that the Court should not have
dismissed defendants Pelicia Hall and Richard Pennington, as
each responded with deliberate indifference to his pleas for
medical attention. The plaintiff claims that he did not give
detailed information against these defendants in his
complaint because of space constraints, and that he did not
expound on their roles in this lawsuit at his Spears
hearing in an attempt to help the Court expedite the hearing
process. The result, the plaintiff states, is that the Court
misunderstood his allegations against Hall and Pennington.
See Doc. #23 at 1. The plaintiff contends that both
Hall and Pennington were in violation of various policies by
failing to ensure he received medical treatment, and that his
letters/grievances to them made them aware of his claim that
he was being denied his constitutional right to medical care.
He claims that under existing law, their ability and duty to
help him, combined with their knowledge of his lack of
treatment, makes them liable for their failure to ensure he
received proper medical care.
previously noted by the Court in its Memorandum Opinion and
Order, § 1983 does not “create supervisory or
respondeat superior liablity.” Oliver v.
Scott, 276 F.3d 736, 742 n.6 (5th Cir. 2002). Rather,
“[e]ach Government official, his or her title
notwithstanding, is only liable for his or her own
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009). Therefore, supervisory officials may be held
liable only if they (i) affirmatively participate in acts
that cause a constitutional deprivation, or (ii) implement
unconstitutional policies that causally result in
plaintiff's injury. See Thompkins v. Belt, 828
F.2d 298, 303 (5th Cir.1987).
Court finds no reason to depart from its original ruling in
this case. See Doc. #17 at 3. Neither Hall nor
Pennington are subject to liability under the facts as
presented by the plaintiff, as their alleged failure to
respond to the plaintiff's letters and grievances is not
the type of affirmative, personal involvement in a
constitutional deprivation that will subject either of them
to constitutional liability. See, e.g., Mayes v.
Valdez, No. 3:15-CV-3424-M-BH, 2017 WL 4075184, at *7
(N.D. Tex. Aug. 21, 2017), report and recommendation
adopted, No. 3:15-CV-3424-M-BH, 2017 WL 4022890 (N.D.
Tex. Sept. 13, 2017) (collecting cases); see also
Dehghani v. Vogelgesang, 226 F. App'x 404, 406 (5th
Cir. 2007) (holding plaintiff's allegation that warden
failed to adequately investigate grievance did not amount to
constitutional violation). Accordingly, the plaintiff's
allegations are insufficient to suggest that either Hall or
Pennington, through their own action or inaction, violated
the plaintiff's constitutional rights, and they are
properly dismissed from this action.
Court dismissed the plaintiff's claim that the
defendants' conduct violated the ADA and/or RA, finding
that neither Act “covers the mere absence or inadequacy
of medical ...