Miola v. Nassau County et al

Filing 8

ORDER granting 7 Motion for Reconsideration re 5 Order on Motion for Leave to Proceed in forma pauperis, Order Dismissing Case. SO ORDERED that plaintiffs application for reconsideration of so much of this Courts April 30, 2015 order as sua spon te dismissed his complaint in its entirety with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief is granted but, upon reconsideration, the Court adheres to its original determinati on. The Clerk of the Court shall close this case and, pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve notice of entry of this order upon plaintiff in accordance with Rule 5(b) of the Federal Rules of Civil Procedure. The Cour t certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 5/28/2015. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
ANTHONY MIOLA,

FILED 
CLERK 

5/28/2015 12:14 pm

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

Plaintiff,
ORDER
15-CV-2323 (SJF)(SIL)

-againstNASSAU COUNTY, MICHAEL SPOSATO,
Defendants.
--------------------------------------------------------------X
FEUERSTEIN, District Judge:

On April 17, 2015, pro se plaintiff Anthony Miola (“plaintiff” or “Miola”) filed: (1) a civil
rights complaint pursuant to 42 U.S.C. § 1983 against Nassau County and Michael Sposato
(collectively, “defendants”), alleging that unsanitary prison conditions purportedly existing at the
Nassau County Correctional Center (“NCCC”) during his incarceration there in 2011-2012 deprived
him of his constitutional rights; and (2) an application to proceed in forma pauperis. By order dated
April 30, 2015, inter alia, plaintiff’s application to proceed in forma pauperis was granted and his
complaint was sua sponte dismissed in its entirety with prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief. Plaintiff now moves for
reconsideration of so much of the April 30, 2105 order as sua sponte dismissed his complaint with
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). For the reasons set forth
below, plaintiff’s application for reconsideration is granted but, upon reconsideration, the Court
adheres to its original determination to sua sponte dismiss his complaint in its entirety with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief.

1

I.

DISCUSSION
Motions for reconsideration in this district are governed by Rule 6.3 of the Local Rules of

the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule
6.3”), which provides, in relevant part, that a “notice of motion for reconsideration or reargument
of a court order determining a motion shall be served within fourteen (14) days after the entry of the
Court’s determination of the original motion * * *. There shall be served with the notice of motion
a memorandum setting forth concisely the matters or controlling decisions which counsel believes
the Court has overlooked.” The requirements of Local Rule 6.3 are “narrowly construed and strictly
applied,” Chepilko v. Cigna Life Ins. Co. of N.Y., 952 F. Supp. 2d 629, 631 (S.D.N.Y. 2013), aff’d,
590 F. App’x 98 (2d Cir. Jan. 22, 2015) (quotations and citations omitted); see also U.S. v. Yudong
Zhu, 41 F. Supp. 3d 341, 342 (S.D.N.Y. 2014), “so as to avoid duplicative rulings on previously
considered issues, and to prevent Rule 6.3 from being used to advance different theories not
previously argued or as a substitute for appealing a final judgment.” Anwar v. Fairfield Greenwich
Ltd., 950 F. Supp. 2d 633, 638 (S.D.N.Y. 2013); see also Schoolcraft v. City of New York, 298
F.R.D. 134, 137 (S.D.N.Y. 2014).
In determining a motion for reconsideration, the court should consider: (1) whether there has
been “an intervening change of controlling law;” (2) whether there is new evidence presented that
was not previously available on the original motion; and (3) whether there is a “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,
2

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); accord Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012).
Plaintiff contends, in essence, that reconsideration is warranted because he asserts a “new”
claim in this action that he did not assert in the Anderson action, i.e., that he contracted a staph
infection as a result of his incarceration at the NCCC. However, as plaintiff has failed to proffer any
evidence in support of that claim, or to demonstrate that he could not have raised that purportedly
“new” claim in the Anderson action prior to the dismissal of his claims therein with prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, the assertion of that claim in this
action does not alter my original determination in the April 30, 2015 order. See Nemaizer v. Baker,
793 F.2d 58, 61 (2d Cir. 1986) (holding that a dismissal with prejudice under Rule 41(b) of the
Federal Rules of Civil Procedure “constitutes a final judgment with the preclusive effect of res
judicata not only as to matters litigated and decided by it, but as to all relevant issues which could
have been but were not raised and litigated in the suit.” (emphasis added; quotations and citation
omitted); accord Samuels v. Northern Telecom, Inc., 942 F.2d 834, 836 (2d Cir. 1991). Accordingly,
plaintiff’s application for reconsideration is granted but, upon reconsideration, I adhere to my
original determination to sua sponte dismiss his complaint in its entirety with prejudice pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief.

II.

Conclusion
For the reasons stated herein, plaintiff’s application for reconsideration of so much of this

Court’s April 30, 2015 order as sua sponte dismissed his complaint in its entirety with prejudice
3

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief is
granted but, upon reconsideration, the Court adheres to its original determination. The Clerk of the
Court shall close this case and, pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure,
serve notice of entry of this order upon plaintiff in accordance with Rule 5(b) of the Federal Rules
of Civil Procedure.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.
__________/s/__________________
SANDRA J. FEUERSTEIN
United States District Judge
Dated: May 28, 2015
Central Islip, N.Y.

4