Hernandez v. Schirro et al

Filing 17

MEMORANDUM DECISION AND ORDER. By Order 11 dated September 15, 2014 and Judgment 14 dated September 16, 2014, the Court dismissed this action on the ground that plaintiff had no standing to pursue it. Plaintiff has now filed, 15 , an affirm ation in opposition to motion, which the Court construes as a motion to vacate the 14 Judgment pursuant to Federal Rule of Civil Procedure 60 (b) [...]. Plaintiff's 15 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 therefore in forma pauperis status is denied for purpose of an appeal. Ordered by Judge Brian M. Cogan on 9/30/2014. Copy mailed to pro se Plaintiff Angel Hernandez on 9/30/2014. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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X
:
ANGEL HERNANDEZ,
:
:
Plaintiff,
:
:
- against :
:
COMMISSIONER DORA SCHIRRO, WARDEN :
LUIS RIVERA, and SUPERINTENDENT at C:
74-C-73,
:
Defendant.
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MEMORANDUM
DECISION AND ORDER
14 Civ. 4538 (BMC)

X

COGAN, District Judge.
By Order dated September 15, 2014 and Judgment dated September 16, 2014, the Court
dismissed this action on the ground that plaintiff had no standing to pursue it. The complaint had
alleged that by forcing plaintiff to pass through a metal scanner at Rikers Island, defendants had
injured plaintiff by causing him to “worry[] that I am going to be affected by radiation sooner or
later.” The Court held that this speculative possibility of future injury did not constitute an
injury in fact sufficient to confer standing.
Plaintiff has now filed an “affirmation in opposition to motion,” which the Court
construes as a motion to vacate the Judgment pursuant to Federal Rule of Civil Procedure 60(b),
in which he states that he has
medical documents that state I had rashes [and] skin disorders that might have
been caused by the effects too much radiation. …
[I]t is a proven fact that you can have skin disorders such as rashes/burns which
lead to [unintelligible] skin infection … I think or I should say I know that I
caught rashes/skin disorder because of too much radiation which is cruel and
unusual punishment.

… Also I went through depression and anxiety maybe it was also side effect from
the radiation.
The only additional facts alleged in this affirmation as compared to the original complaint are (1)
plaintiff has medical records showing that he has rashes or skin disorders; and (2) plaintiff
believes he has depression. It remains entirely speculative that these conditions were “fairly
traceable” to radiation, or that plaintiff is suffering injury by having been subjected to the Rikers
Island scanner. That speculation leaves plaintiff’s claim insufficient to confer standing.
Accordingly, 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
therefore in forma pauperis status is denied for purpose of an appeal.
SO ORDERED.

Digitally signed by Brian M. Cogan
______________________________________
U.S.D.J.
Dated: Brooklyn, New York
September 30, 2014

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