Wilson v. ADA Kelly Sessoms-Newton et al

Filing 176

For the reasons stated in the attached, Plaintiff's motion for reconsideration 170 of the Court's summary judgment 165 order is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in g ood faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to enter judgment and terminate this case accordingly. Ordered by Judge Pamela K. Chen on 11/15/2017. (Hess, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THEODORE O. WILSON III,
Plaintiff,
MEMORANDUM & ORDER
14-CV-0106 (PKC)(ST)

- against ADA KELLY SESSOMS-NEWTON, D.I.
JANET HELGESON,
Respondent.
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PAMELA K. CHEN, United States District Judge:

Plaintiff Theodore Wilson, proceeding pro se, filed this action on September 5, 2017,
seeking reconsideration of the Court’s August 17, 2017 Order granting Defendants’ motion for
summary judgment. (Dkt. 170.) For the reasons stated herein, Plaintiff’s motion is denied.
BACKGROUND
The Court assume the parties’ familiarity with the facts in this case. In 2014, Plaintiff filed
a Complaint pursuant to 42 U.S.C. § 1983, alleging that Defendants ADA Kelly Sessoms-Newton
and D.I. Janet Helgeson unlawfully entered the property in which Plaintiff lived and stole his
belongings, in violation of his Fourth Amendment rights. (Dkts. 1, 6.) On August 17, 2017, the
Court granted Defendants’ motion for summary judgment. (Dkt. 165.) On September 5, 2017,
Plaintiff filed his motion for reconsideration requesting that the Court grant “an entire
reconsideration [and] reargument” of the summary judgment motion. (Dkt. 170, at 2.)
STANDARD OF REVIEW
The decision to grant or deny a motion for reconsideration “is within the sound discretion
of the district court . . . and is an extraordinary remedy to be employed sparingly in the interests
of finality and conservation of scarce judicial resources.” Mangino v. Inc. Vill. of Patchogue, 814
F.Supp.2d 242, 247 (E.D.N.Y. 2011) (internal citations and quotation marks omitted); see also

Hernandez v. Doe, No. 16-CV-2375 (KAM)(LB), 2016 WL 7391989, at *2 (E.D.N.Y. Dec. 21,
2016). Generally, a motion for reconsideration will be “denied unless the moving party can point
to controlling decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” SBC 2010–1, LLC v. Morton,
Nos. 13–714, 13–1161, 2013 WL 6642410, at *1 (2d Cir. Dec. 18, 2013) (citation omitted); see
Massop v. U.S. Postal Serv., 493 F. App’x 231, 232 (2d Cir. 2012). It is “well-settled” that 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) (internal citation
omitted); see also Caribbean Trading & Fid. Corp. v. Nigerian Nat’l Petroleum Corp., 948 F.2d
111, 115 (2d Cir. 1991).
JURISDICTION
Although Plaintiff filed both a Notice of Appeal and a motion for reconsideration of the
summary judgment motion on September 5, 2017 (see Dkts. 168, 170), this Court has the “express
authority to entertain a timely motion to alter or amend the judgment under Rule 59, even after a
notice of appeal had been filed,” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61
(1982). While Plaintiff does not label it as such, the Court construes Plaintiff’s filing as a motion
to “alter or amend a judgment” under Fed. R. Civ. P. 59(e) and finds that it is timely since it was
“filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
ANALYSIS
Plaintiff raises, for the first time, the argument that “the evidentiary statements this Court
used [and relied on], from Defendants, was/were hearsay.” (Dkt. 170 at 3,4; Dkt. 171, at 1,7.) The
Court may not consider a new argument on a motion for reconsideration when it could have been
previously raised. See Morton, 2013 WL 6642410, at *1; Woodard v. Hardenfelder, 845 F.Supp.
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960, 966 (E.D.N.Y. 1994). But even if the Court were to consider this defaulted argument, it
would not alter the result. Federal Rule of Civil Procedure 56(c) requires affidavits submitted in
connection with a summary judgment motion to “be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is competent to testify
on the matters stated.” Fed. R. Civ. P. 56(c)(4). “When an affidavit does not comply with these
basic requirements, the offending portions should be disregarded by the court.” Wahad v. F.B.I.,
179 F.R.D. 429, 435 (S.D.N.Y. 1998) (citing United States v. Alessi, 599 F.2d 513, 514–15 (2d
Cir.1979)). Plaintiff fails to identify any specific statements in Defendants’ affidavits that are not
based “on personal knowledge” or that would be inadmissible in evidence. For example, the
affidavit of Lisa Thomas, the legal owner of the property Plaintiff was squatting in, only set forth
facts sworn to be within Thomas’s personal knowledge, such as whether Plaintiff had her
permission to be on the premises. (Aff. of Lisa Thomas, Dkt. 153-7, at ¶¶ 11, 19-21.) This is also
true of Defendant Sessoms-Newton, whose declaration only attested to what she personally heard
and saw during her investigation. (See Decl. of Kelly Sessoms-Newton, Dkt. 153-I.)
As to the remainder of Plaintiff’s arguments, he fails to point to any controlling law or facts
that the Court overlooked in granting Defendants’ motion for summary judgment. Instead,
Plaintiff’s motion “is nothing more than a rehash of the arguments previously raised.” Image
Processing Techs., LLC v. Canon Inc., No. CV 10-3867 SJF ETB, 2012 WL 253097, at *2
(E.D.N.Y. Jan. 26, 2012). Therefore, the Court declines to reconsider its August 17, 2017 Order
granting summary judgment to Defendants.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration is denied. The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and

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therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United
States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to enter
judgment and terminate this case accordingly.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: November 15, 2017
Brooklyn, New York

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