United States District Court, D. New Mexico
F. WEISS Simone, Roberts & Weiss, P.A. Attorney for
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the “Constitutional
8th 4th, 14th Violations
American With Disability Act (A.D.A.) 42 U.S.C. §
12102(4)(A). Civil Rights Violation” filed October 11,
2016 (Doc. 76) and “Motion; Criminal Complaint of
Possible Death in Transit February 18, 2014” filed
October 14, 2016 (Doc. 77) by Plaintiff Joseph Rascón.
The Court construes Plaintiff Rascón's filings as
motions to alter or amend judgment under Fed.R.Civ.P. 59(e)
and denies the motions.
motion to alter or amend judgment under Rule 59(e)
“must be filed no later than 28 days after entry of the
judgment.” Fed.R.Civ.P. 59(e). A Rule 59(e) motion may
be granted only if the moving party establishes one of the
following three grounds: “(1) an intervening change in
the controlling law, (2) new evidence previously unavailable,
and (3) the need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). Such a motion does not
permit a losing party to revisit arguments previously
addressed or to present new arguments that could have been
raised earlier. Fed.R.Civ.P. 59(e); Servants of the
Paraclete, 204 F.3d at 1012. The district court has
great discretion in deciding a Rule 59(e) motion. See
Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)
(“We review a district court's ruling on a
Fed.R.Civ.P. 59(e) motion under an abuse of discretion
standard.”) In short, a Rule 59(e) motion “should
be granted only ‘“to correct manifest errors of
law or to present newly discovered evidence.”'
Phelps, 122 F.3d at 1324 (quoting Committee for
the First Amendment v. Campbell, 962 F.2d 1517, 1523
of how it is styled, a post-judgment motion that is filed
within  days [of the final judgment] that questions the
correctness of the judgment is properly construed as a Rule
59(e) motion.” See Venable v. Haislip, 721
F.2d 297, 299 (10th Cir. 1983) (discussing Rule 59(e) in the
context of the pre-2009 Amendment to the Rules).
reasons stated below, the COURT DENIES Mr.
Rascón's “Constitutional 8th
4th, 14th Violations American With
Disability Act (A.D.A.) 42 U.S.C. § 12102(4)(A). Civil
Rights Violation” filed October 11, 2016 (Doc. 76) and
“Motion; Criminal Complaint of Possible Death in
Transit February 18, 2014” filed October 14, 2016 (Doc.
77), Motion for Appointment of Counsel (Doc. 81), and Motion;
Rule 702 Fed. R. Evidence (Doc. 83).
Factual and Procedural Background
Complaint, Mr. Rascón alleged that he suffers from
arthritis and degenerative bone disease, which cause severe
pain. (Doc. 1 at 8). Prison doctors had recommended that Mr.
Rascón undergo hip replacement surgery and had
arranged for his transport to a medical facility for a
preoperative consultation. On February 18, 2014, he refused
to undergo the hip surgery and refused to be transported,
based on concerns about the length of the transport time in a
prison van and undergoing general anesthesia. Following his
refusal of the preoperative transport, Defendant Bixenman, in
consultation with Defendants Douglas and Staber, placed Mr.
Rascón in a medical cell for four days for the purpose
of monitoring his withdrawal from Morphine and Norco, opioid
pain medications, and his transition to non-opioid pain
medication. The cell had only a steel slab for sleeping and
had no mattress or blankets. (Doc. 1 at 8). The morphine
medication that Mr. Rascón had been receiving was
stopped and he was given a psychiatric drug, Vistoril, for
the four days. On the fourth day, February 21, 2014, he was
given a mattress and bedding. (Doc. 1 at 8, 9-11, 19).
Court granted the Defendants Douglas, Bixenman, and
Staber's Motion for Summary Judgment (Doc. 41) and
dismissed with prejudice Mr. Rascón's Complaint
(Doc. 1). (Doc. 74 at 2.) The Court ruled that Mr.
Rascón's factual allegations and the additional
materials in the record did not establish an Eighth Amendment
claim of deliberate indifference to serious medical needs.
(Doc. 74 at 14.)
granting the Defendants' Motion for Summary Judgment, the
Court noted that “[a]n Eighth Amendment claim for
deliberate indifference to serious medical needs involves a
two-pronged inquiry, comprised of an objective component and
a subjective component.” Sealock v. Colo., 218
F.3d 1205, 1209 (10th Cir.2000).” (Doc. 74 at 9.) While
Mr. Rascón established with undisputed facts the
objective prong of his Eighth Amendment claim (that he
suffers from serious medical conditions), he failed to show
the subjective component of his Eighth Amendment claim (that
the prison officials knowingly or recklessly disregarded his
serious symptoms). More specifically (and briefly), first,
with respect to the objective component, the undisputed facts
in the record clearly showed that “Mr. Rascón
suffers from serious medical conditions, including
osteoarthritis and degenerative joint disease, which have
been diagnosed by a physician as mandating treatment.”
(Doc. 74 at 12.) However, the facts in the record did not
show that the Defendants were deliberately indifferent to Mr.
Rascón's medical needs. In fact, the record showed
that the Defendants attempted to address his medical needs by
arranging a bilateral hip replacement surgery, but that Mr.
Rascón declined to undergo the surgery and then
disagreed with the Defendants' medical decision to
withdraw the narcotic pain medications. (Id. at
Rascón filed a Notice of Appeal on November 3, 2016,
appealing from the Court's Memorandum Opinion and Order
dismissing his Complaint. (Doc. 79.) Mr. Rascón filed
his two post-judgment filings, Doc. 76 and Doc 77, within
twenty-eight days after entry of Judgment.
first post-judgment filing, Mr. Rascón argues that the
Defendants' actions violated the Americans with
Disabilities Act (ADA) and the Health Insurance Portability
and Accountability Act (HIPAA). (Doc. 76 at 1.) In his second
post-judgment filing, he urges if he had not refused
transport, he likely would have choked to death, and that the
Defendants exposed him to great danger in placing him in a
medical segregation cell with a cold bunk as he withdrew from
opioid pain medication. (Doc. 77 at 2.) He urges that these
acts constitute attempted murder for which the Defendants
should be criminally prosecuted. (Id.).
Rascón filed the two motions shortly after the Court
entered its Judgment. Although neither of Mr.
Rascón's filings expressly asks the Court to
reconsider its Memorandum Opinion and Order (Doc. 74), both
of them raise issues related to the merits of his medical
claims and the Court's ruling dismissing those claims.