Gibbons v. Nassau County et al

Filing 6

ORDER denying 5 Motion for Reconsideration re 3 Order. SO ORDERED that Plaintiff has failed to advance any reason for why his motion should be granted, and the motion for reconsideration is denied. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 2/3/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CARLO GIBBONS,

FILED 
CLERK 

2/3/2016 4:28 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff,
-against-

ORDER
15-CV-1956 (SJF)(SIL)

NASSAU COUNTY, MICHAEL SPOSATO,
Defendants.
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FEUERSTEIN, J.
Plaintiff Carlo Gibbons (“Gibbons” or “Plaintiff”) moves for reconsideration of the April
30, 2015 Order dismissing his complaint with prejudice for failure to state a claim for relief.
(DE 5, Mot. for Reconsideration). The complaint alleges that Gibbons was deprived of his
constitutional rights pursuant to 42 U.S.C. § 1983 when he contracted a staph infection during
his incarceration at the Nassau County Correctional Center (“NCCC”) between 2011 and 2012.
(DE 1, Compl. at 1-2). On April 30, 2015, Gibbons’s action was dismissed with prejudice, as his
civil rights claim had previously been dismissed with prejudice in a prior consolidated action,
Anderson, et al. v. Sposato, et al., No. 11-cv-5663, and his claim was therefore precluded. (DE
3, Order at 4). Judgment was entered on May 8, 2015. (DE 4, J.).
“A motion for reconsideration should be granted only when the [party] identifies ‘an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL
Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). “[R]econsideration will generally 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.” Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Reconsideration will not be granted where the moving party: (1) seeks to introduce
additional facts not in the record on the original motion, see Rafter v. Liddle, 288 F. App’x 768,
769 (2d Cir. 2008); (2) advances new arguments or issues that could have been raised on the
original motion, see Redd v. N.Y. State Div. of Parole, 923 F. Supp. 2d 393, 396 (E.D.N.Y.
2013); or (3) “seeks solely to relitigate an issue already decided,” Shrader, 70 F.3d at 257. It is
within the sound discretion of the district court whether to grant a motion for
reconsideration. See Callari v. Blackman Plumbing Supply, Inc., 988 F. Supp. 2d 261, 287
(E.D.N.Y. 2013).
Plaintiff alleges that he has found “newly discovered evidence” that would merit granting
his motion for reconsideration. See Fed. R. Civ. P. 60(b)(2) (“newly discovered evidence”).
Gibbons claims that he did not have symptoms suggesting a staph infection before he arrived at
the NCCC but presented with such symptoms upon his release from the NCCC. (DE 5, Mot. for
Reconsideration at 2). However, the factual allegation fails to constitute “newly discovered
evidence” pursuant to Rule 60(b)(2), as Gibbons raised the same claim in his complaint. (See
DE 1, Compl. at 2). As a result, Plaintiff has failed to advance any reason for why his motion
should be granted, and the motion for reconsideration is denied.
SO ORDERED.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: February 3, 2016
Central Islip, New York

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