IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES E. LUNDEEN, Sr., M.D.,

Plaintiff,

vs. Civil Action 2:11-cv-484

Magistrate Judge King

LANCE A. TALMADGE, et al.,

Defendants.

OPINION AND ORDER

On November 21, 2011, and with the consent of the parties pursuant

to 28 U.S.C. § 636(c), this Court dismissed plaintiff’s claims against

defendants, denied plaintiff’s motion for default judgment, and denied

plaintiff’s motions for preliminary injunction. Opinion and Order, Doc.

No. 42. Final judgment was entered that same date. Clerk’s Judgment,

Doc. No. 43. This matter is now before the Court on plaintiff’s November

29, 2011, motion to reconsider. Plaintiff’s Verified Motion for

Reconsideration of Order Pursuant to Fed.R.Civ.P. 59(e) and For a Status

Conference, Doc. No. 45 (“Motion to Reconsider”). For the following

reasons, the Motion to Reconsider, Doc. No. 45, is DENIED.

A motion to alter or amend judgment pursuant to Fed. R. Civ. P.

59(e) may be granted only where there is “(1) a clear error of law; (2)

newly discovered evidence; (3) an intervening change in controlling law;

or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson,

428 F.3d 605, 620 (6th Cir. 2005); see also Huff v. Metro. Life Ins. Co.,

675 F.2d 119, 122 (6th Cir. 1982) (noting that a motion for

reconsideration “generally is treated as a motion to alter or amend

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judgment pursuant to Fed. R. Civ. P. 59(e)).

Plaintiff, attempting to identify a “clear error of law,” advances

the following arguments: (1) “[t]he lack of impartiality [of the

officials who conducted the August hearing] must be presumed as the board

members are named as defendants in this instant complaint,” Motion to

Reconsider, p.7; (2) the decision in Watts v. Burkhart, 978 F.2d 269, 271

(6th Cir. 1992), which was cited in this Court’s order, is

distinguishable on the ground that the medical board in that case held

a suspension hearing before summarily suspending the plaintiff’s license,

Motion to Reconsider, p.11; (3) that because he denies the allegations

against him, he “committed no cognizable bad act that would have

precipitated state coercive action or proceedings,” id., p.12; and (4)

because the allegations against him concern “the ‘potential’ for future

harm to patients” rather than “actual harm,” they are not allegations of

“bad act[s],” id., p.12. Plaintiff also alleges that he discovered “new

evidence” in the form the State Medical Board’s report and

recommendation, which he believes demonstrates that the proceedings were

“remedial” in nature. Id., p.9. In particular, plaintiff alleges

without citation that he “was also the plaintiff in the voluntary

remedial board proceeding[] commenced on August 22, 2011.” Id., p.11

(emphasis in original).

Plaintiff fails to identify a basis for altering or amending the

judgment dismissing this action. First, plaintiff’s argument regarding

the claimed partiality of certain state officials is frivolous and

unsupported by legal authority. Second, plaintiff’s attempt to identify

a “clear error of law” by factually distinguishing Watts v. Burkhart, 978

F.2d 269, fails. See also Buckwalter v. Nev. Bd. of Med. Exam’rs, No.

2

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2:10–CV–2034, 2011 WL 1200567, *3 (D. Nev. March 25, 2011) (“It cannot

be seriously disputed that there are instances where public safety

requires immediate suspension of licensee privileges.”). Third, even

pursuant to the standard cited by plaintiff, the fact that plaintiff

denies the existence of bad conduct on his part is not enough to avoid

Younger abstention. See Brown ex rel. Brown v. Day, 555 F.3d 882, 891

(10th Cir. 2009) (“[I]f the federal plaintiff has committed an alleged

bad act, then the state proceeding initiated to punish the plaintiff is

coercive.”) (emphasis added). Fourth, plaintiff’s attempt to redefine

“harm” is unconvincing. See also Brown, 555 F.3d at 891. Finally,

plaintiff cites to no document or authority indicating that he was the

plaintiff in the state administrative proceedings or that those

proceedings were otherwise remedial in nature.

Because plaintiff has not established a valid basis for altering or

amending this Court’s previous order and judgment, plaintiff’s Motion to

Reconsider, Doc. No. 45, is DENIED.

January 25, 2012 s/Norah McCann King 

 (Date) Norah M Cann King c

 United States Magistrate Judge

3

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