CORDERO v. KELLEY et al

Filing 5

MEMORANDUM AND ORDER that the Clerk shall REOPEN this matter; that Plaintiff's motion for reconsideration (d.e. 3 ) is DENIED; that the Clerk shall ADMINISTRATIVELY TERMINATE this case; that if Plaintiff wishes to reopen this case he shall notify the Court, in writing, within 90 days of the date of entry of this Order. Signed by Judge Peter G. Sheridan on 8/8/2017. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MISAEL CORDERO,
Civil Action No. 17-1596 (PGS)
Plaintiff,
v.

:

MEMORANDUM AND ORDER

GREGORY KELLEY, et a!.,
Defendants.

Plaintiff Misael Cordero, a prisoner currently confined at the New Jersey State Prison in

Trenton, New Jersey, seeks to bring this civil action in forina pauperis (“IFP”), without
prepayment of fees or security, asserting claims pursuant to 42 U.S.C.

§

1983.

The Court

previously denied his IFP application on the merits, finding that his $320/month income as an
incarcerated prisoner demonstrated a sufficient ability to pay the filing fee. ECF No. 2. Presently
before the Court is Plaintiff’s motion for reconsideration. ECF No. 3.
Motions for reconsideration are governed by Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1(i).
iThe “extraordinary remedy” of reconsideration is “to be granted sparingly.” AK. Stumping Co.,
Inc., v. Instrument Specialties Co., Inc., 106 F. Supp. 2d 627, 662 (D.N.J. 2000) (quoting NL

Indus., inc., v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)). The Rule “does
not contemplate a Court looking to matters which were not originally presented.” Damiano v. Sony
Music Entertainment, Inc., 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Florham Park Chevron,
Inc., v. Chevron USA., Inc.. 680 F. Supp. 159, 162 (D.N.J. 1988)).

The Third Circuit has held that the “purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence.” Harsco C’orp. v.
Zlotincki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171(1986).

“Reconsideration motions, however, may not be used to relitigate old matters, nor to raise
arguments or present evidence that could have been raised prior to the entry ofjudgment.” NL
Indus., Inc., 935 F. Supp. at 516; See Wright, Miller & Kane, Fed. Practice and Procedure: Civil
2d

§ 2810.1. Such motions will only be granted where (1) an intervening change in the law has

occurred, (2) new evidence not previously available has emerged, or (3) the need to correct a
clear error of law or prevent a manifest injustice arises. See, North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Because reconsideration of ajudgment
after its entry is an extraordinary remedy, requests pursuant to these rules are to be granted
“sparingly,” Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986); and only when
“dispositive factual matters or controlling decisions of law” were brought to the Court’s attention
but not considered. Feiham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). See G-69 v.
Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990).
Plaintiffs motion is denied. Although Plaintiff provides a laundry list of expenses in his
motion, he does not explain how those expenses add up to offset most of his income. He also
asserts that he has to spend his income on necessary items to live, but a prison is not only presumed,
but required by law to provide prisoners with the basic necessities of life. See Rhodes v. Chapman,
452 U.S. 337, 347 (1981).

If Plaintiff truly believes that his prison is not providing such

necessities, he should seek remedies through the appropriate process. To the extent Plaintiff is
spending his income to make his life a little more comfortable, that is of course within his rights,
“[b]ut the Constitution does not mandate comfortable prisons[.]” Id. at 349.
The Court understands that Plaintiff has a choice how to spend his own money, but filing
a lawsuit is also a choice, a choice every person is confronted with in life, even when they are not
incarcerated. Plaintiff has submitted a six-month statement demonstrating that he had the ability

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to pay the filing fee, and if Plaintiff is unwilling to pay that fee in order to file his lawsuit, that is
certainly his choice. IFP is a privilege, not a right, and Plaintiff has not demonstrated to this
Court’s satisfaction that he is entitled to that privilege. See Shahin v. Sec. of Del., 532 F. App’x
123, 123 (3d Cir. 2013) (“[Tjhe [IFP] status is a privilege rather than a right[.j”). While Plaintiff
argues that he has been granted IFP status in the past, IFP status is determined individually for
each case. Accordingly, the motion is denied.
However, in the interest of justice, because Plaintiff represents that he cannot save up
enough money to pay the filing fee within the 30 days afforded by the Court in its prior order, the
Court will affbrd Plaintiff another 90 days to submit the proper filing fee.
ITlSthereforeonthis

dayof

,2017,

ORDERED that the Clerk shall REOPEN the case by making a new and separate docket

entry reading “CIVIL CASE REOPENED”; and it is further
ORDERED that Plaintiffs motion for reconsideration, ECF No. 3, is hereby DENIED; it
is further
ORDERED that the Clerk shall ADMINISTRATIVELY TERMINATE this case,
without filing the complaint or assessing a filing fee; it is further
ORDERED that if Plaintiff wishes to reopen this case, he shall so notify the Court, in
writing addressed to the Clerk of the Court, within 90 days of the date of entry of this Order;
Plaintiffs writing shall include the $400 fee—the $350 filing fee plus the $50 administrative fee;
it is further
ORDERED that upon receipt of a writing from Plaintiff stating that he wishes to reopen
this case, and payment of the filing and administrative fees within the time allotted by this Court,
the Clerk will be directed to reopen this case; and it is further

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ORDERED that the Clerk shall serve a copy of this Order upon Plaintiff by regular mail.

Peter 0. Sheridan, U.S.D.J.

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