Santana v. Warner
DECISION AND ORDER denying Pltf's 34 Motion for Reconsideration. The part of Pltf's motion seeking to amend his complaint is denied as moot. Signed by Senior Judge Thomas J. McAvoy on 11/20/12. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
M. WARNER, Registered Nurse,
Bare Hill Correctional Facility,
Thomas J. McAvoy,
Sr. U.S. District Judge
DECISION & ORDER
Plaintiff moves pursuant to Fed. R. Civ. P. 59(e) for reconsideration of that much of
the Court’s September 12, 2012 Decision and Order that denied his Fed. R. Civ. P. 60(b)
motion. Dkt. # 34. Defendant has opposed the motion. Dkt. # 35. For the reasons that
follow, the motion is denied.
a. Commencement of the Action
Plaintiff, originally proceeding pro se and formerly an inmate in the custody of the
New York State Department of Correctional and Community Supervision (“DOCCS”),
commenced this action on April 20, 2011. See Compl. dkt. # 1. The action was brought
pursuant to 42 U.S.C. § 1983 and alleged that Defendant Warner, a nurse employed by
DOCCS, violated Plaintiff’s constitutional rights under the Eighth Amendment by failing to
provide proper medical treatment after Plaintiff smashed his finger in a door while
incarcerated at Bare Hill Correctional Facility. Compl. Dkt. # 1. On April 21, 2011, the
Court issued an order directing Santana to either prepay the filing fee of $350.00 in full or
provide the clerk with a signed authorization form for $350.00 within 30 days of the filing
date of that Order. Santana provided the inmate authorization form on May 13, 2011, and
on the same date moved for leave to proceed in forma pauperis. Dkt. # 5, # 6. The Court
granted the in forma pauperis motion on July 22, 2011, and in that Order stated, inter alia:
Plaintiff must comply with any requests by the Clerk's Office for any
documents that are necessary to maintain this action. All parties must
comply with Local Rule 7.1 of the Northern District of New York in filing
motions. Plaintiff is also required to promptly notify the Clerk's Office
and all parties or their counsel of any change in his address; plaintiff's
failure to do so will result in the dismissal of this action.
see Dkt. # 7 (emphasis in original).
b. Summary Judgment
On August 19, 2011, Warner answered the Complaint, Dkt. # 10, and, on August
29, 2011, Warner moved for summary judgment pursuant to Fed. R. Civ. P. 56. See Dkt. #
12. The summary judgment motion was referred to the Hon. David R. Homer, United
States Magistrate Judge, for a Report-Recommendation pursuant 28U.S.C. § 636(b) and
Local Rules 72.3(c). Santana failed to respond to the motion.
On September 7 and September 8, 2011, the Court received back as
“undeliverable” five pieces of mail sent to Plaintiff at his correctional facility address. See
dkt. # 17 - # 21. None of these were the July 22, 2011 Order that addressed the in forma
pauperis application. On November 29, 2011, Magistrate Judge Homer issued his Report2
Recommendation and Order on Defendant’s motion for summary judgment. See dkt. #
22. Magistrate Judge Homer recommended that Plaintiff’s action be dismissed pursuant to
Federal Rule of Civil Procedure 41(b) and N.D.N.Y.L.R. 41.2(a) because Santana failed to
communicate with opposing counsel or the Court for seven months prior to the filing of the
summary judgment motion,1 and failed to comply with Local Rule 10.1(c) (2).2 Upon
reviewing the Report-Recommendation and Order, and absent objection from Plaintiff, the
Court adopted Magistrate Judge Homer’s recommendation and granted the motion for
summary judgment thereby dismissing the Complaint in its entirety. See /26/12 Dec. &
Ord., dkt. # 24; see also 1/26/12 Judgment, dkt. # 25.
c. Rule 60(b) Motion, or, in the alternative, to Declare Dismissal was Without
Plaintiff then moved, through counsel, for an order pursuant to Rule 60(b)(1) and
(6) to vacate the dismissal and allow Plaintiff to proceed with the action.3 Dkt. # 27. In the
alternative, Plaintiff sought an order declaring that the dismissal was without prejudice so
that Plaintiff could file a new action. Id. The basis for the motion was, essentially, that
Plaintiff started his action while he was incarcerated with the aid of “jailhouse lawyers,”
and that due to Plaintiff’s limited understanding of the English language and the fact that
he was released from incarceration shortly after the Defendant answered the complaint,
he did not know: (a) that a summary judgment motion had been made; (b) that a decision
Magistrate Judge David R. Homer recommended that Defendant’s motion be granted because of
“Santana’s repeated and ongoing failures to fulfill his obligations to notify the Court and counsel of his
address and to continue to litigate the present case.” Id., p. 5.
Local Rule 10.1(c)(2) provides that “[a]ll . . . pro se litigants must immediately notify the Court of any
change of address.”
Plaintiff also argued that if the action is revived, he should be granted leave to amend his Complaint.
had been rendered dismissing his case, and (c) that he was required to provide the Court
and opposing counsel with a forwarding address upon his release from incarceration. Id.
The Court considered the Rule 60(b)(1) portion of the motion under the four “excusable
neglect” factors set forth in Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd., 507 U.S.
380, 395, 113 S. Ct. 1489, 123 L. Ed.2d 74 (1993), and held:
Inasmuch as three of the four Pioneer factors tip in Defendant’s favor,
including the third Pioneer factor, the Court finds that Plaintiff has failed to
establish excusable neglect sufficient to vacate the judgment pursuant to
Fed. R. Civ. P. 60(b)(1).
9/12/12 Dec. and Ord. p. 9. dkt. # 33. The Court also found no basis to vacate the
judgment under Fed. R. Civ. P. 60(b)(6). Id. pp. 9-10.
On the nature of the dismissal, the Court ruled that the Fed. R. Civ. P. 41(b)
dismissal was “with prejudice.” See id. p. 10 (citing Fed. R. Civ. P. 41(b);4 Semtek Int'l Inc.
v. Lockheed Martin Corp., 531 U.S. 497, 505–07 (2001) (An “adjudication on the merits”
pursuant to Rule 41(b) operates to “bar the plaintiff from returning later, to the same
court, with the same underlying claim.”); Storey v. O'Brien, 2012 WL 1889408, at *1 (2d
Cir. May 25, 2012)(“[S]ince an adjudication on the merits, Fed. R. Civ. P. 41(b), is the
functional equivalent of an order of dismissal with prejudice, the district court's dismissal is
deemed with prejudice.” )(internal quotation marks and citation omitted)).
Federal Rule of Civil Procedure 41(b) provides in pertinent part:
(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to
join a party under Rule 19-- operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b)(emphasis added).
d. Current Motion
Plaintiff now moves pursuant to Fed. R. Civ. P. 59(e) for reconsideration of the
Court’s September 12, 2012 Decision and Order. He argues that his case should not
have been dismissed because the Pioneer factors weigh in his favor. Dkt. # 34. He also
argues that if the action is re-instated, he should be allowed to amend his complaint. Id.
Defendant has opposed the motion. Dkt. # 35.
Plaintiff’s motion for reconsideration is governed by Fed. R. Civ. P. 59(e).
Reconsideration of a court's prior ruling is an "extreme remedy only to be employed
sparingly in the interest of finality and conservation of scarce judicial resources." Stewart
Park and Reserve Coal., Inc. v. Slater, 374 F. Supp.2d 243, 253 (N.D.N.Y. 2005). The
standard for granting a motion for reconsideration is strict, and such a motion "is not a
vehicle for reargument or asserting arguments that could and should have been made
before [the order] was issued." Id.; see Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d
Cir. 1998)( 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.’“). Simply stated, a motion for reconsideration will "not be granted where the
moving party seeks solely to relitigate an issue already decided." Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995). The Northern District of New York “recognizes only
three possible grounds upon which a motion for reconsideration may be granted: (1) an
intervening change in controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct clear error of law to prevent manifest injustice.” U.S. v.
Li, 2006 WL 2375475, at *1 (N.D.N.Y. 2006).
Upon reviewing Plaintiff's motion, the Court finds that reconsideration is not
warranted. Plaintiff presents no meritorious basis to vacate the September 12, 2012
decision. He demonstrates no new change in controlling law, no new evidence, and no
need for a correction of clear error of law to prevent a manifest injustice. Rather, Plaintiff
merely reargues the issues addressed in the previous decision,5 attempting to fill the gaps
and take the proverbial second bite of the apple. This is insufficient. See Shrader, 70 F.3d
at 257; Sequa, 156 F.3d at 144. Therefore, the motion is denied.
For the reasons set forth above, Plaintiff's motion for reconsideration [dkt. # 34] is
DENIED. That part of Plaintiff’s motion seeking to amend his complaint is DENIED as
IT IS SO ORDERED.
Dated: November 20, 2012
Defendant’s opposing Memorandum of Law correctly points out that the Court explicitly accounted
for Plaintiff’s lack of English language proficiency. Dkt. #35 at 3 (quoting 09/12/12/ Dec. & Ord. at 8 (“. .
.Plaintiff fails to present convincing evidence of his inability to read and understand English such to support
his argument that his failure to communicate with opposing counsel and the Court about his change of
address constituted excusable neglect.”)).
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