Toliver v. Semple et al

Filing 27

ORDER granting 15 Motion for Reconsideration. After careful review, however, the requested relief is denied. Signed by Judge Stefan R. Underhill on 2/27/2017. (Landman, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SEAN TOLIVER,
Plaintiff,
v.
SEMPLE, et al.,
Defendants.

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No. 3:16-cv-1899 (SRU)

RULING ON PLAINTIFF’S MOTION FOR RECONSIDERATION
Sean Toliver seeks reconsideration of the portion of the Initial Review Order dismissing
the claims against Warden Falcone. For the reasons that follow, the request is denied.
Reconsideration will be granted only if the moving party can identify controlling
decisions or data that I overlooked and that would reasonably be expected to alter my decision.
A motion for reconsideration “is not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or otherwise taking a “‘second bite at the
apple.’” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(quoting Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (internal quotation
marks and citation omitted)). Any new evidence must be “truly newly discovered or could not
have been found by due diligence.” Space Hunters, Inc. v. United States, 500 F. App’x 76, 81
(2d Cir. 2012).
Toliver asks me to take judicial notice of a purported class action filed on behalf of
inmates at Garner Correctional Institution. The complaint in that case, Grenier v. Semple, No.
3:16-cv-1465 (AVC), was filed in August 2016. Toliver did not file the complaint in this case
until December 2016. Thus, any information from the class action could have been included in

the complaint and is not newly discovered. Because that information is not newly discovered, it
is insufficient to warrant reconsideration of the dismissal of the claim against Warden Falcone.
In addition, the Grenier plaintiffs allege that Warden Falcone did not assume that
position until March 2014. See Grenier v. Semple, No. 3:16-cv-1465 (AVC), ECF No. 1 at 5.
Toliver alleged no facts suggesting that Warden Falcone was aware of the problem before
assuming the position of warden, or had any duty to inform Toliver of the problem before that
time. Also, Toliver alleges that immediately after the test results were known, remedial
measures were undertaken and completed by June 2014.
Toliver’s motion for reconsideration [ECF No. 15] is GRANTED. After careful review,
however, the requested relief is DENIED.
SO ORDERED this 27th day of February 2017, at Bridgeport, Connecticut.
/s/STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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