Noel Davila v. Monica Farinella et al. (2012)

MEMORANDUM OF DECISION

This action, in which the plaintiff/prison inmate alleges that he is being denied proper medical treatment, is before the court on the plaintiff's objections (# 150) to the court's memorandum of decision, dated June 7, 2012 (# 148) (decision), which was issued after an evidentiary hearing, and which denied his application for a preliminary injunction.   Although the plaintiff styles his objections as being to the court's “report and recommendation,” the objections seek reconsideration of the denial of the requested relief.

I

Background

The background of this matter was summarized in the decision and need not be repeated.   As previously stated, the plaintiff, Noel Davila, a Connecticut prison inmate, alleges he suffers from severe and chronic pain stemming from various medical conditions, and that the defendants have denied to him a prescribed pain management treatment plan.

II

Standard of Review

The appellate courts repeatedly have reiterated the standards which govern reargument or reconsideration.  “[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ․” (Internal quotation marks omitted.)   Hudson Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d 260 (2012).

“A motion to reargue is not a device to ․ present additional cases or briefs which could have been presented at the time of the original argument.”   (Internal quotation marks omitted.)  C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007).

“Newly discovered evidence may warrant reconsideration of a court's decision.   However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence.”  (Internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006).

“[A]s a general matter, in the absence of the discovery of some new facts or new legal authorities that could not have been presented earlier, the denial of a motion for reargument is not an abuse of the discretion of the trial court.”  (Emphasis omitted;  internal quotation marks omitted.)  Weinstein v. Weinstein, 275 Conn. 671, 705, 882 A.2d 53 (2005).  “[A] motion to reargue cannot be used to correct the deficiencies in a prior motion ․” Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).

III

Discussion

The court below addresses the plaintiff's arguments set forth in his objections.   In essence, the plaintiff seeks to re-litigate the entire application for a preliminary injunction.   This represents an effort at having a “second bite of the apple,” which as stated above, is prohibited under Connecticut law.   See Hudson Valley Bank v. Kissel, supra, 303 Conn. 624.   For example, the plaintiff refers to affidavits which were not presented at the evidentiary hearing, claims he was not in the proper state of mind and could not concentrate at the hearing, and forgot to pursue his request to be transferred to another facility for rehabilitation services.   Such efforts to re-do the hearing are impermissible.

Also, affidavits, even if they had been presented at the hearing, would not have been admissible evidence, since they are hearsay.  “Under our rules of evidence, hearsay is ‘a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.’   Conn.Code Evid. § 8–1(3).”  State v. Mourning, 104 Conn.App. 262, 279, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007).

Contrary to the plaintiff's objections, the court did not fail to allow the plaintiff to present witnesses.   As explained in the decision, he had a full and fair opportunity to present witnesses and other evidence at the hearing.

The plaintiff also refers to events which occurred after the hearing, such as a medical appointment at the UConn Health Center and a subsequent refusal by the defendants to see him.   Allegations about subsequent events do not amount to newly discovered evidence which is germaine to the adjudication of his previous application.   Rather, such subsequent events may be the subject of new claims, assuming the evidence warrants a new application.

On reconsideration or reargument, the court may not consider new claims.   See Kosnik v. Barton, 93 Conn.App. 244, 249, 888 A.2d 1107 (2006).   As stated above, it also may not consider newly cited caselaw which could have been provided earlier.   As reflected in the decision, the court considered the plaintiff's previous arguments, including those presented by written submission.   See decision, pages 1 and 4, referring to the plaintiff's reply (# 146), in which he cited caselaw.

The plaintiff also asserts that he was not on notice that the court had granted issuance of his subpoenas for witnesses and that he was not aware of the contents of the subpoena form.   See decision, page 4. The plaintiff could have raised these issues at the time of the hearing.   The court may not consider them at this juncture.

As the Appellate Court recently stated, “Although [courts] are solicitous of the rights of [self-represented] litigants ․ [s]uch a litigant is bound by the same rules ․ and procedure as those qualified to practice law.”   (Internal quotation marks omitted.)  Thompson v. Rhodes, 125 Conn.App. 649, 651, 10 A.3d 537 (2010).  “[T]he right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.”  (Internal quotation marks omitted.)  Lucarelli v. Freedom of Information Commission, 136 Conn.App. 405, 410, (2012).

The plaintiff asserts that he could not address legal theories while he was recuperating from surgery.   As the court noted in its decision, page 3, the plaintiff made no request concerning lack of preparedness for the hearing until after:  (1) after his own testimony concluded, and after the defense had presented the testimony of one of the defendants, Dr. Monica Farinella;  (2) after the defense presented records of the plaintiff's extensive medical history;  and (3) after the defense rested for the purposes of the hearing.   The court properly concluded in its decision that the plaintiff had adequate opportunities prepare for and to present witnesses and evidence at the hearing and that further opportunities to do so were not warranted.

Similarly, the plaintiff's effort to distinguish his situation from those in caselaw cited by the defendants represents a post-decision effort to raise arguments which could have been presented previously.   The court may not consider such arguments on reconsideration.   See C.R. Klewin Northeast, LLC v. Bridgeport, supra, 282 Conn. 101 n.39.

The plaintiff also asserts that a credibility issue is presented which is not amenable to resolution through the court's decision.   In a proceeding such as the evidentiary hearing held concerning the plaintiff's application for a preliminary injunction, the trial court judge is the sole arbiter of credibility.  “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.”  (Internal quotation marks omitted.)  Gianetti v. Norwalk Hospital, 304 Conn. 754, 780, 43 A.3d 567 (2012).

The plaintiff also repeats his previous arguments about inadequate medical treatment, which were addressed in the decision.   Based on the evidence in the record from the hearing, the court concluded that, while the plaintiff testified that the defendants are wrongfully denying him medication, the evidentiary record reflected that he continues to receive medical care and does not support issuance of injunctive relief.   The court stated, “The plaintiff has not presented evidence showing deliberate indifference to his medical needs.   After review of the testimony, exhibits and arguments, the court concludes that the plaintiff has not shown a likelihood of success on the merits or irreparable injury.   Rather, based on the record, it appears that the plaintiff is receiving ongoing medical care to address his medical issues.”   See decision, page 8.

The plaintiff's arguments that Dr. Farinella is not his principal physician and his post-decision challenge to her expertise do not negate the court's assessment of her testimony at the hearing.   Rather, these are arguments which could have been presented previously, and which may not be considered now as they represent additional attempts, prohibited by appellate authority, cited above, at “second bites of the apple.”

The plaintiff's argument that he did not receive timely notice of the hearing also is an argument which could have been presented previously, at the hearing itself, before the evidentiary presentation began.   As stated above, a motion to reargue cannot be used to correct previous deficiencies.   See Opoku v. Grant, supra, 63 Conn.App. 692.

The court also is unpersuaded by the plaintiff's argument that he was not afforded an opportunity to submit a written memorandum.   As discussed above, the court considered the plaintiff's previous reply.   See decision, pages 1 and 4;  see plaintiff's reply (# 146).   Also, the plaintiff did not request the opportunity to present a post-hearing memorandum until after receiving the decision.   Again, this is another attempt at a prohibited “second bite of the apple.”

Likewise unpersuasive is the plaintiff's unspecified request to amend the complaint “to overcome the deficiency.”   See plaintiff's objections, page 15 of 24.   The court's decision was not addressed to the legal sufficiency of the pleadings.   Rather, it was a denial of preliminary injunctive relief.   Factual findings entered in a preliminary phase of the case, on an application for a temporary injunction, do not “[become] the law of the case, from which a subsequent court could not depart ․ Res judicata effect applies only to orders that meet the standards of finality for appeal, not interlocutory rulings.”   Byars v. City of Waterbury, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 99 0152489 (July 21, 2000, Hodgson, J.) (27 Conn. L. Rptr. 613), citing CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 398–99, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154–55, 735 A.2d 333 (1999).   Similarly, in the absence of res judicata effect, there is no infringement on the plaintiff's right to have a jury decide the facts.

Also unavailing are the plaintiff's contentions concerning alleged delay in diagnosis, alleged racial discrimination, and allegedly using him as a “guinea pig” for experiments.   No credible evidence of such conduct was presented at the hearing.   The plaintiff's allegations concerning harassment and retaliation, which allegedly occurred after the hearing, may be the subjects of new claims, but are not proper subjects for reconsideration after an evidentiary hearing has been held on a previous application and a decision rendered thereon.

CONCLUSION

Based on the foregoing reasons, the plaintiff's objections to the court's decision denying his application for a preliminary injunction are overruled.   It is so ordered.

BY THE COURT

ROBERT SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.