UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_______________________________

 :

RAFAEL FONTANEZ, :

 : Civil Action No. 

Plaintiff, : 11-2573 (RMB)

 :

v. : 

 :

ABIGAIL LOPEZ et al., : MEMORANDUM OPINION

 : AND ORDER

Defendants. :

_______________________________:

 

This matter comes before the Court upon Plaintiff’s filing of

a motion for reconsideration, Docket Entry No. 14, and it appearing

that:

1. This Court examined Plaintiff’s challenges three times, see

Docket Entries Nos. 2, 3, 6, 10 and 11, when it screened his

original and amended pleadings, and addressed his prior motion

for reconsideration, each time explaining the substantive law. 

Another recital of the same appears superfluous. Hence, 

suffice it to state that, reviewing Plaintiff’s challenges,

the Court detailed to him the test applicable to Eighth

Amendment claims and pointed out that a medical practitioner’s

refusal to summon a doctor of an inmate’s choice, or a medical

practitioner’s error in diagnosis or medical treatment, or

minor delays in treatment, or analogous oversights cannot

qualify as acts of deliberate indifference sustaining a claim

of constitutional magnitude: at most, such facts could give

Case 1:11-cv-02573-RMB-AMD Document 15 Filed 01/17/13 Page 1 of 4 PageID: 250
rise to a tort claim of negligence, i.e., a common law medical

malpractice challenge. See, e.g., Docket Entry No. 10, at 12-

13. 

2. Applying these tests to Plaintiff’s original and amended

challenges, the Court dismissed all his claims raised under

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), but

proceeded certain of Plaintiff’s negligence-based challenges

(raised under the Federal Tort Claims Act). See Docket Entry

No. 10, at 15-16. These negligence claims are currently

litigated.

3. In response to the Court’s determinations, Plaintiff filed the

motion at bar. See Docket Entry No. 14. In his motion,

Plaintiff asserted that the Court erred in its conclusions

because: (a) a certain defendant was a nurse rather than a

doctor; (b) Plaintiff was of the opinion that this nurse

should had known enough to conclude that a specialized doctor

had to be summoned; (c) Plaintiff believed that a certain

supervisor had to be constitutionally liable to him under

certain agency rules and because that supervisor did not

reduce her initial rejection of Plaintiff’s request for

referral to a specialist to writing; and (d) Plaintiff felt

that brief negligent delays in referral to a specialist (while

he was under continuous medical treatment of other medical

practitioners) should be sufficient to give basis to a claim

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of constitutional magnitude. See id.

4. This Court already detailed to Plaintiff the standard

applicable to motions for reconsideration.

A motion for reconsideration is a device of limited

utility. There are only four grounds upon which a

motion for reconsideration might be granted: (a) to

correct manifest errors of law or fact upon which

the judgment was based; (b) to present

newly-discovered or previously unavailable

evidence; (c) to prevent manifest injustice; 8 and

(d) to accord the decision to an intervening change

in prevailing law. See 11 Charles A. Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice

and Procedure § 2810.1 (2d ed. 1995); see also

Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d

Cir. 1985), cert. denied, 476 U.S. 1171 (1986)

(purpose of motion for reconsideration is to

correct manifest errors of law or fact or to

present newly discovered evidence). "To support

reargument, a moving party must show that

dispositive factual matters or controlling

decisions of law were overlooked by the court in

reaching its prior decision." Assisted Living

Associates of Moorestown, L.L.C., v. Moorestown

Tp., 996 F. Supp. 409, 442 (D.N.J. 1998). In

contrast, mere disagreement with the district

court's decision is an inappropriate ground for a

motion for reconsideration: such disagreement

should be raised through the appellate process. 

See id. (citing Bermingham v. Sony Corp. of

America, Inc., 820 F. Supp. 834, 859 n.8 (D.N.J.

1992), aff'd, 37 F.3d 1485 (3d Cir. 1994) . . . .

Docket Entry No. 6, at 10-12.

5. Like Plaintiff’s prior motion for reconsideration, his instant

motion states merely his disagreement with the Court’s

conclusions and points out at no manifest errors of law or

fact; nor does it present newly-discovered or previously

unavailable evidence. It does not bring to this Court’s

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attention an intervening change in prevailing law (and the

Court, on its own, is not aware of any such change), and it

supplies no basis for a finding of manifest injustice. 

IT IS, therefore, on this 17th day of January 2013,

ORDERED Plaintiff’s motion, Docket Entry No. 14, is granted in

form and denied in substance;1 and it is further

ORDERED that this Court’s prior determinations, stated in

Docket Entry No. 11, shall remain in ful force; and it is finally

ORDERED that the Clerk shall serve a copy of this Memorandum

Opinion and Order upon Plaintiff by regular U.S. mail.

 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

1

 The Court of Appeals guided that a litigant's motion for

reconsideration should be deemed "granted" when the court (the

decision of which the litigant is seeking a reconsideration of)

addresses the merits — rather than the mere procedural propriety

or lack thereof- of that motion. See Pena-Ruiz v. Solorzano, 281

Fed. App'x 110, 111, n.1 (3d Cir. 2008). 

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