inmate's claim for deliberate indifference against officials who failed to timely diagnose his cancer accrued when he learned of his cancer diagnosis.
How later courts described this case
- inmate's claim for deliberate indifference against officials who failed to timely diagnose his cancer accrued when he learned of his cancer diagnosis.
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EDWARD J. MORGAN (#590862) CIVIL ACTION
VERSUS
23-107-SDD-RLB
JAMES LEBLANC, ET AL.
ORDER
Before the Court is the plaintiff’s Motion to Amend Judgment or Make Additional
Factual Findings (R. Doc. 12). The plaintiff asserts that, contrary to the Court’s conclusion that
prescription began to run on the date the plaintiff was diagnosed with colon cancer, prescription
did not begin to run on his claim until surgery was required. Plaintiff brings his Motion pursuant
to Federal Rule of Civil Procedure 52(b) and/or 59(e).
The primary purpose of a Rule 52(b) motion is to ensure an accurate statement of the
Court's finding of facts, typically for appeal purposes. “In doing so the movant raises questions
of substance by seeking reconsideration of material findings of fact or conclusions of law.”
Shivers v. Grubbs, 747 F. Supp. 434, 436 (S.D. Ohio 1990) (citing Leishman v. Associated
Wholesale Elec. Co., 318 U.S. 203, 205 (1943); United States v. Crescent Amusement Co., 323
U.S. 173 (1944) ).
“A Rule 59(e) motion ‘calls into question the correctness of a judgment.’ ” Templet v.
HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)(quoting In re Transtexas Gas Corp., 303
F.3d 571, 581 (5th Cir. 2002)). “A Rule 59(e) motion must clearly establish either a manifest
error of law or fact or must present newly discovered evidence” Advocare Intern. LP v. Horizon
Laboratories, Inc., 524 F.3d 679, 691 (5th Cir. 2008) (quoting Rosenzweig v. Azurix Corp., 332
F.3d 854, 863 (5th Cir. 2003))(quoting Simon v. U.S., 891 F.2d 1154, 1159 (5th Cir. 1990)), and
“is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have
been offered or raised before the entry of judgment.” Templet, 367 F.3d 473, 478-9(5th Cir.
2004) “ ‘Manifest error’ is one that ‘is plain and indisputable, and that amounts to a complete
disregard of the controlling law.’ ” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.
2004)(quoting Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004)).
The Fifth Circuit has explained that reconsideration of a judgment after it has been entered under
Rule 59(e) “[i]s an extraordinary remedy that should be used sparingly.” Templet, 367 F.3d at
479 (citing Clancy v. Empl'rs Health Ins. Co., 101 F.Supp.2d 463, 465 (E.D. La. 2000)).
As this Court has explained, “[w]hile the district courts do have ‘considerable discretion in
deciding whether to grant or deny a motion to alter judgment,’ denial of Rule 59(e) motions to
alter or amend is favored.” Brown v. Louisiana State Senate, 2013 WL 5603232, at *1 (M.D. La.
Oct. 11, 2013) (quoting Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995)).
The plaintiff does not contest that he was diagnosed with colon cancer in December of
2020, or that the applicable prescriptive period is one year. Rather the plaintiff asserts that his
claim did not accrue until the day his inner sphincter, anal tube and outer sphincter were excised
because he did not sustain any real/actual injuries until this date. Plaintiff merely rehashes
arguments that he already offered in his Objection to the Magistrate Judge’s Report and
Recommendation. For this reason, and as explained more fully below, the plaintiff’s Motion will
be denied.
Regardless of the later treatment required for the plaintiff’s colon cancer, his claim
accrued when he was diagnosed with colon cancer. See Johnson v. Beard, 2022 WL 17252451
(E.D. Ca. Nov. 18, 2022) (To the extent plaintiff claimed defendant’s deliberate indifference
resulted in plaintiff developing cancer and obtaining a late diagnosis, plaintiff's claim accrued on
July 16, 2013, when plaintiff was diagnosed with prostate cancer.); Devbrow v. Kalu, 705 F.3d
765, 770 (7th Cir. 2013) (inmate's claim for deliberate indifference against officials who failed to
timely diagnose his cancer accrued when he learned of his cancer diagnosis.); Moore v. Sherman
Police Dept., 1995 WL 581433 (5th Cir. Aug. 22, 1995),(when a claim is based on failure to
make a proper diagnosis, the plaintiff sustains his injury at the point he is told his initial
diagnosis was incorrect.); and Waters v. Geo Grp., Inc., No. 15-282, 2016 WL 4373717, at *5
(E.D. Va. Aug. 10, 2016) (though plaintiff was aware of a large growth on his neck, plaintiff's
cause of action accrued no earlier than when he was officially diagnosed with lymphoma.)
Accrual occurs at the time of diagnosis even though the full extent of the injury (cancer) is not
then known or predictable. Wallace v. Kato, 549 U.S. 384, 391 (2007).
As such, there is no reason for this Court to reconsider its findings of fact or conclusions
of law. There has been no manifest error of fact or law. Accordingly,
IT IS ORDERED that the plaintiff’s Motion (R. Doc. 12) is DENIED.
Baton Rouge, Louisiana, this 13th day of November, 2022.
S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA