The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JABBAR SACHET AL-KHAFAGI, Case No.: 3:19-cv-00669-AN
Plaintiff,
v.
OPINION AND ORDER
CARI CRITES, Oregon State Correctional
Institution (OSCI), Registered Nurse (RN);
LORETTA IRVING, OSCI Medical Services
Manager,
Defendants.
This case arises from plaintiff Jabbar Al-Khafagi's civil rights claim brought under 42
U.S.C. § 1983. On October 18, 2024, plaintiff filed a Motion for Partial Reconsideration, ECF [198],
seeking reconsideration of the Court's dismissal of Dr. Warren Roberts as a defendant and of plaintiff's
punitive damages claim. After reviewing the parties' pleadings, the Court finds that oral argument will not
help resolve this matter. Local R. 7-1(d). For the following reasons, plaintiff's motion is GRANTED in
part and DENIED in part.
LEGAL STANDARD
Under Federal Rule of Civil Procedure ("FRCP") 54(b), the court may revise any order or
other decision "that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties . . . before the entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities." Where reconsideration of a non-final order is sought, the court has "inherent jurisdiction to
modify, alter or revoke it." United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000).
Reconsideration of an order is "an extraordinary remedy, to be used sparingly in the
interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Est. of Bishop, 229 F.3d
877, 890 (9th Cir. 2000) (internal quotation marks and citation omitted). A court should reconsider its
earlier decision if it "(1) is presented with newly discovered evidence, (2) committed clear error or the
initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist.
No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation omitted). "Reconsideration motions
may not be used to raise new arguments or introduce new evidence if, with reasonable diligence, the
arguments and evidence could have been presented during consideration of the original ruling." Berman v.
Freedom Fin. Network, LLC, 30 F.4th 849, 859 (9th Cir. 2022) (citing Kona Enters., 229 F.3d at 890).
Ultimately, whether to grant or deny a motion for reconsideration is in the sound discretion of the district
court. Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046
(9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883).
BACKGROUND
Plaintiff is an adult in custody ("AIC") at Oregon State Correctional Institution ("OSCI").
Plaintiff brought this action against defendants Cari Crites ("Crites"), Loretta Irving ("Irving"), Dr. Warren
Roberts ("Roberts"), and Joe Bugher ("Bugher"), alleging inadequate and delayed medical care in violation
of his Eighth Amendment right to be free from cruel and unusual punishment under 42 U.S.C. § 1983. On
July 29, 2024, defendants filed a Motion for Summary Judgment, ECF [131]. On October 17, 2024, the
Court granted in part and denied in part defendants' motion. Op. & Order of October 17, 2024, ECF [195].
In relevant part, the Court granted summary judgment as to plaintiff's claims against Dr. Roberts and Bugher
and as to plaintiff's punitive damages claim. Id. at 16-17, 19. Plaintiff now moves for reconsideration on
two issues: the dismissal of (1) Dr. Roberts as a defendant, and (2) plaintiff's punitive damages claim.
DISCUSSION
A. Dismissal of Dr. Roberts
Plaintiff argues that the Court should reconsider its dismissal of Dr. Roberts, Chief of
Medicine of the Oregon Department of Corrections ("ODOC"), as a defendant on the grounds that (1) there
is sufficient evidence in the record that Dr. Roberts was personally involved in plaintiff's care, and (2) there
is new evidence available regarding Dr. Roberts's job duties and roles in this case.
1. Clear Error
First, plaintiff argues that there is sufficient evidence in the record to at least raise a genuine
dispute as to whether Dr. Roberts acted with deliberate indifference. The Court construes plaintiff's first
argument as an argument of clear error. "Clear error occurs when 'the reviewing court on the entire record
is left with the definite and firm conviction that a mistake has been committed.'" Smith v. Clark Cnty. Sch.
Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)).
Plaintiff refers to three of Dr. Roberts's actions to support this argument: (1) his signature
on a document conditioning plaintiff's appointment at Oregon Health and Science University ("OHSU") on
self-payment in April 2021, (2) his unilateral approval of plaintiff's referral to OHSU in June 2021, and (3)
his signature on a denial of plaintiff's request for pain medication in October 2021. Pl. Mot. for Partial
Recons. ("Pl. Mot."), ECF [198], at 3-5. However, none of these actions raise a genuine dispute as to
whether Dr. Roberts acted with deliberate indifference.
The first two actions of approving plaintiff's appointment at and referral to OHSU show
only that Dr. Roberts participated in approving medical treatment for plaintiff. However, simply approving
treatments does not show that Dr. Roberts acted with deliberate indifference with respect to plaintiff's
alleged inadequate or delayed care, and plaintiff does not point to any evidence to demonstrate deliberate
indifference on the part of Dr. Roberts. To the extent that plaintiff argues that conditioning the OHSU
appointment on self-payment was a functional denial or delay of medical treatment, see Pl. Mot. 4, plaintiff
does not offer any evidence that Dr. Roberts knew that the appointment would be cost-prohibitive or that
the functional denial or delay would create a substantial risk of harm to plaintiff, see Farmer v. Brennan,
511 U.S. 825, 837 (1994) ("[A] prison official cannot be found liable under the Eighth Amendment . . .
unless the official knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference."). Plaintiff's conclusory assertion that Dr. Roberts "could have
referred [plaintiff] to the specialists at OHSU without TLC Committee approval at any time[] but [] did not
do so until it was too late" is based solely on conjecture without proper evidentiary support. Pl. Mot. 4
(emphasis and footnote omitted). Finally, plaintiff's argument that "[w]hether it was consistent with the
community standard of care to deny referral to a specialist at OHSU . . . is an issue [for] the jury to decide"
is only true where plaintiff has presented evidence that Dr. Roberts actually denied the referral. Id. at 4 n.3.
But plaintiff has not and cannot.; Indeed, based on the current record, it appears that Dr. Roberts approved
plaintiff's referral to an OHSU specialist less than four hours after receiving the recommendation. See
Decl. Heather J. Van Meter Supp. Pl. Sur-Resp. to Defs. Mot. Summ. J., ECF [172], Ex. 8. Accordingly,
the actions of approving medical care for plaintiff do not demonstrate deliberate indifference.
The third action is a denial of plaintiff's request for a non-formulary medication. The
document denying that request reflects that the medication was "not medically indicated."1 Decl. Sophia
C. von Bergen Supp. Pl. Resp. to Defs. Mot. Summ. J., ECF [140], Ex. 51. The question of whether a
particular form of treatment, such as administration of a medication, "is indicated is a classic example of a
matter for medical judgment." Estelle v. Gamble, 429 U.S. 97, 107 (1976). In such circumstances, a denial
of a request for medication will evince deliberate indifference only if plaintiff shows that the decision "was
medically unacceptable under the circumstances" and "was chosen in conscious disregard of an excessive
risk to [the prisoner's] health." Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (alteration in
original) (internal quotation marks omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.
1996)). Plaintiff does not offer any evidence to show that this decision was either. Accordingly, plaintiff
has not demonstrated clear error.
2. Newly Discovered Evidence
Second, plaintiff argues that there is new evidence available regarding Dr. Roberts's job
duties and roles in this case. To justify reconsideration based on newly discovered evidence, the moving
party must show (1) "that the evidence was discovered after the judgment"; (2) "that the evidence could not
1 During summary judgment briefing, plaintiff included the document denying the medication request as an exhibit
but did not identify the denial of the medication request as an act by Dr. Roberts. See Pl. Resp. to Defs. Mot. Summ.
J. ("Pl. Resp."), ECF [139], at 11 (noting that signatures on document were "not legible").
be discovered earlier through due diligence"; and (3) "that the newly discovered evidence is of such a
magnitude that had the court known of it earlier, the outcome would likely have been different." Dixon v.
Wallowa Cnty., 336 F.3d 1013, 1022 (9th Cir. 2003) (citing Far Out Prods., Inc. v. Oskar, 247 F.3d 986,
992-93 (9th Cir. 2001)).
Plaintiff's purported new evidence includes: (1) a document describing Dr. Roberts's job
duties as ODOC's medical director, including his "essential" responsibility "to monitor the health care
provided and review medical records to ensure that services are timely and appropriate," as well as
deposition testimony confirming the scope of those duties; and (2) Dr. Roberts's signature on a progress
note from October 2019 that contains a reference to the history of surgery on plaintiff's left eye. Pl. Mot.
6; Pl. Reply Supp. Pl. Mot. for Partial Recons. ("Pl. Reply"), ECF [215], at 3-4; see Decl. Sophia C. von
Bergen Supp. Pl. Mot., ECF [200], Ex. A; Decl. Sophia C. von Bergen Supp. Pl. Reply ("von Bergen Reply
Decl."), ECF [216], Exs. 2-3.
However, plaintiff does not show that this "newly discovered evidence" could not have
been discovered earlier through due diligence. As defendants argue, the document describing Dr. Roberts's
job duties conveys information that was largely already available to plaintiff, and many of the
responsibilities detailed in the document can also be found in the Oregon Administrative Rules. The fact
that plaintiff had requested "[a]ll documents containing the name(s), address(es) and telephone number(s)
for all occurrence witnesses" on October 2, 2019, and that plaintiff's counsel had requested additional and
updated records upon engagement in the case does not demonstrate that plaintiff had previously requested
this evidence that he now proffers. Pl. Reply 4-5. More importantly, plaintiff does not demonstrate that
the evidence is of such magnitude that the outcome would have been different. Like other evidence in the
record, the document of Dr. Roberts's job duties shows that Dr. Roberts oversaw the medical care of AICs
in ODOC custody, including plaintiff. However, without more, evidence that Dr. Roberts was a supervisor
or a member of the TLC Committee is not enough to raise a genuine dispute as to whether Dr. Roberts acted
with deliberate indifference. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Further, although Dr.
Roberts's signature on the October 2019 progress note shows that Dr. Roberts provided medical care to
plaintiff on one occasion, Dr. Roberts's participation in a neurosurgery consult for plaintiff's back pain does
not raise a genuine dispute as to whether Dr. Roberts acted with deliberate indifference to plaintiff's eye
conditions. See Order of October 17, 2024, ECF [196], at 3 (granting plaintiff's seventh motion in limine).
Accordingly, plaintiff has not presented new evidence to justify reconsideration, and plaintiff's attempt to
relitigate this issue is unpersuasive.
B. Dismissal of Punitive Damages Claim
Plaintiff argues that the Court should reconsider its ruling as to punitive damages because
"it was incorrect, and likely a legal error" for the Court to dismiss plaintiff's claim for punitive damages.
Pl. Mot. 9. Plaintiff argues that "punitive damages are necessarily appropriate for the jury to consider"
where the underlying deliberate indifference claim survives summary judgment. Id. at 7.
As an initial matter, this Court has not located any binding case law mandating that punitive
damages "are necessarily appropriate" just because the underlying deliberate indifference claim survives
summary judgment. Punitive damages are available in a section 1983 action "when [a defendant's conduct]
involves reckless or callous indifference to the federally protected rights of others." Dang v. Cross, 422
F.3d 800, 807 (9th Cir. 2005) (internal quotation marks and citation omitted). Courts have held that
"[d]eliberate indifference and recklessness are similar standards." Wellever v. Ryan, No. CV-15-00634-
PHX-JAT (JZB), 2016 WL 7187927, at *8 (D. Ariz. Dec. 12, 2016) (citing Farmer, 511 U.S. at 836); see
Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016).
The Court is persuaded by the courts' reasoning in Wellever; Brown v. County of Mariposa,
No. 1:18-cv-01541-LJO-SAB, 2019 WL 1993990 (E.D. Cal. May 6, 2019); and Paris v. Conmed
Healthcare Management, Inc., No. 6:14-CV-1620-TC, 2017 WL 7310079 (D. Or. Nov. 28, 2017), report
and recommendation adopted, 2018 WL 664807 (D. Or. Jan. 31, 2018). In each of these cases, the court
held that it was appropriate to deny summary judgment as to punitive damages where it also denied
summary judgment as to the underlying Eighth Amendment claim. In Wellever, with respect to a claim of
delayed medical care, the court held:
"[T]here are genuine issues of material fact regarding [the defendant's] liability for a
constitutional violation. If a jury concludes that she acted with callous or reckless
indifference to [the p]laintiff's Eighth Amendment rights, it may assess punitive damages.
Thus, [the defendant] is not entitled to summary judgment as to [the p]laintiff's claim for
punitive damages."
2016 WL 7187927, at *9 (citations omitted). Similarly, in Brown, with respect to a claim of inadequate
medical care, the court held:
"Because the Court finds that the [p]laintiff has alleged a claim for deliberate indifference,
which requires a showing of 'something akin to reckless disregard,' and the standard for the
availability of punitive damages in a 1983 action includes 'when the defendant's conduct is
shown to be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others,' [the p]laintiff's request for punitive
damages survives."
2019 WL 1993990, at *14 (emphases in original) (citations omitted). Finally, in Paris, with respect to a
claim of inadequate medical care, the court noted that the defendants' argument for summary judgment on
punitive damages was "essentially based on [the defendants'] contention that none of the [] defendants
showed deliberate indifference to [the plaintiff]'s serious medical needs[.]" 2017 WL 7310079, at *15. The
court thus denied summary judgment on punitive damages because there was sufficient evidence from
which a jury could find deliberate indifference on the part of the defendants with respect to the underlying
Eighth Amendment claim. Id.
Here, the Court has already found that plaintiff has alleged a claim of deliberate
indifference. Defendants' argument against punitive damages on summary judgment was based solely on
the contention that none of the defendants acted with deliberate indifference. Def. Mot. Summ. J., ECF
[131], at 8. Plaintiff argues that based on the record presented regarding the underlying deliberate
indifference claim, the Court should also find that there is sufficient evidence from which a jury could find
"reckless disregard" with respect to punitive damages. Pl. Mot. 7-8; see Brown, 2019 WL 1993990, at *14;
Wellever, 2016 WL 7187927, at *9. Although deliberate indifference and reckless disregard are not
identical standards, they are similar. Wellever, 2016 WL 7187927, at *8. Upon review, the Court is
persuaded that dismissing plaintiff's punitive damages claim at this point is premature.
Defendants argue that plaintiff could have made his arguments regarding deliberate
indifference and punitive damages during summary judgment briefing or oral argument but did not.
Nevertheless, the Court finds that plaintiff presented the argument, even if briefly, that his punitive damages
claim should survive summary judgment based on a theory of reckless disregard. See Pl. Resp. 24.
Accordingly, the Court finds it appropriate to defer judgment on punitive damages until plaintiff's evidence
is presented at trial.
CONCLUSION
For the foregoing reasons, plaintiffs Motion for Reconsideration, ECF [198], is
GRANTED in part and DENIED in part. The motion is GRANTED to the extent that the Court defers
judgment on the issue of punitive damages until plaintiff's evidence is presented at trial and DENIED as to
the dismissal of Dr. Roberts as a defendant.
IT IS SO ORDERED.
DATED this 6th day of January, 2024.
Adrienne Nelson
United States District Judge