Cortes v. Corrections

Filing 28

ORDER denying 26 Motion for Reconsideration and denying 27 Motion to Amend/Correct for the reasons in the attached ruling. Signed by Judge Vanessa L. Bryant on 2/22/2019. (Bryan, Kelsey)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSE CORTES,
Plaintiff,
v.
DEPARTMENT OF CORRECTIONS,
Defendant.

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No. 3:18-cv-923 (VLB)
February 22, 2019

ORDER DENYING MOTION FOR RECONSIDERATION [DKT. 26]
AND MOTION TO AMEND [DKT. 27]
Plaintiff Jose Cortes filed his complaint pro se under 5 U.S.C. §§ 552 and
552a alleging that Defendant, Department of Correction, improperly rejected his
book order. Plaintiff sought damages and an order that he receive his books.
As required for prisoner civil complaints under 28 U.S.C. § 1915A (2000), the
Court conducted an initial review of Plaintiff’s complaint to identify cognizable
claims and dismiss any portion of the complaint that is frivolous or malicious, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief.
As laid out in the Court’s Initial Review Order, see [Dkt. 15], Plaintiff’s action
pursuant to 5 U.S.C. §§ 552 and 552a for violation of his rights to freedom of
information and to petition the government for redress of grievances in connection
with the rejection of his requests for copies of Black’s Law Dictionary and the New
Oxford American Dictionary failed to state a claim. First, the Court concluded that
Plaintiff had no basis for a freedom of information claim because the federal
Freedom of Information Act, 5 U.S.C. § 552, applies only to the federal government,
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not state agencies such as the Department of Correction named by Plaintiff. See
[Dkt. 15 at 2-3 (citing Crowder v. Farinella, No. 3:17-cv-1135(VAB), 2017 WL
3392546, at *6 (D. Conn. Aug. 7, 2017))]. Next, the Court accounted for a liberal
construction of Plaintiff’s Complaint, considering any alternative potential claim
pursuant to 42 U.S.C. § 1983. The Court concluded that Plaintiff did not name a
proper § 1983 defendant, see id. at 3 (citing Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989) (state agencies cannot be sued under section 1983)), and
even if he had, the Complaint fails to allege facts supporting any cognizable § 1983
claim.

See id. at 3-4.

Finally, the Court highlighted that Plaintiff has no

constitutional right to have a dictionary. See id. at 4 (citing Brown v. Nelson, No.
05 Civ. 4498(RJS), 2008 WL 4104040, at *6 (S.D.N.Y. Aug. 29, 2008) (no
constitutional requirement for inmate to have dictionary)). Accordingly, the Court
dismissed Plaintiff’s Complaint.
The Court’s December 13, 2018 order dismissing the case specified that the
dismissal was without prejudice to refiling an amended complaint asserting a
viable claim within 35 days of the order. See id. at 5. Pursuant to that order, Plaintiff
had until January 17, 2019 to file an amended complaint. In two motions dated
February 12, 2019, Plaintiff seeks reconsideration of the dismissal, [Dkt. 26], and
leave to amend his Complaint, [Dkt. 27]. Both of these motions are DENIED as
untimely and for failure to state grounds upon which the requested relief should be
granted, as discussed below.
A. Motion for Reconsideration
Plaintiff’s Motion for Reconsideration is essentially a motion for relief from

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a judgment or order under Federal Rule of Civil Procedure 60. Rule 60 provides
that “the court may relieve a party or its legal representative from a final judgment,
order, or proceeding” based on “(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence . . . ; (3) fraud . . . , misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged . . . ; or (6) any other reason that justifies
relief.” Fed. R. Civ. P. 60(b).
District of Connecticut Local Rule 7(c) further specifies that motions for
reconsideration “will generally be denied unless the movant can point to
controlling decisions or data that the court overlooked in the initial decision or
order.” The Local Rule requires that a party file any such motion within 7 days of
the filing of the decision or order from which relief is sought and that it be
accompanied by a memorandum setting out the controlling decisions or data the
party believes the Court overlooked. D. Conn. L.R. 7(c)(1).
Plaintiff’s Motion for Reconsideration was filed more than two months after
the Court entered its Initial Review Order and dismissal, well beyond the 7 days
allowed under the Local Rule. The Motion argues only that the dismissal under §
1915 was improper because Plaintiff’s motion for leave to proceed in forma
pauperis had already been granted. See [Dkt. 26 at 1-2]. This argument fails, as
the Court still must conduct an initial review of a prisoner civil complaint and
dismiss claims lacking merit regardless of a prisoner’s in forma pauperis status.
See 28 U.S.C. § 1915A.

Further, Plaintiff makes no argument that the Court

overlooked any law or facts or any other argument which would entitle him to the

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relief requested under Rule 60 or Local Rule 7(c). Plaintiff provides no basis for
reconsideration of the Initial Review Order and dismissal. As such, Plaintiff’s
Motion for Reconsider is DENIED.
B. Motion to Amend
Plaintiff filed his motion to amend two months after the Court’s Initial Review
Order, well outside the 35 days allowed by the Court for amendment. Plaintiff fails
to state good cause for missing the deadline set by the Court. As such, the motion
is untimely.
Additionally, Plaintiff did not provide a proposed amended complaint, as
required by the Court’s Order. See [Dkt. 15 at 5]. Without a proposed amended
complaint, the Court has no basis on which to believe that amendment would not
be futile. While Federal Rule of Civil Procedure 15 provides that leave to amend
should be freely given when justice so requires, such leave must be denied when
amendment would be futile. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d
Cir. 2001) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)). Amendment is futile
when the amended complaint would not survive a motion to dismiss. Id. (“[L]eave
to amend will be denied as futile only if the proposed new claim cannot withstand
a 12(b)(6) motion to dismiss.”).
As laid out infra, the Court already concluded that Plaintiff failed to state a
claim upon which relief could be granted, requiring dismissal of his Complaint. See
[Dkt. 15]. Plaintiff’s Motion to Amend does not state or otherwise suggest how
Plaintiff would change his Complaint. He provides no new legitimate congnizable
bases for his claims which could allow the Court to conclude that his amended

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complaint would survive initial review or a motion to dismiss. Nor can the Court
imagine any cognizable claims based on the facts Plaintiff alleged. As such,
amendment would be futile and Plaintiff’s Motion must be DENIED.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Reconsideration, [Dkt. 26],
and Motion to Amend, [Dkt. 27], are DENIED.

SO ORDERED.
Dated this 22nd day of February 2019, at Hartford, Connecticut.
/s/
Vanessa L. Bryant
United States District Judge

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