Abreu v. Travers et al

Filing 14

DECISION AND ORDER: ORDERED that plaintiff's motion for reconsideration (Dkt. No. 13 ) is DENIED in all respects. ORDERED that this action shall be DISMISSED without prejudice, without further order of the Court, if plaintiff fails to pay the full filing fee of three hundred fifty dollars ($350.00) within thirty (30) days of the filing date of this Decision and Order. Signed by U.S. District Judge Mae A. D'Agostino on 4/28/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CARLOS ABREU,
Plaintiff,
v.

9:15-CV-0540
(MAD/ATB)

TRAVERS, et al.,
Defendants.

APPEARANCES:
CARLOS ABREU
99-A-3027
Plaintiff, pro se
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
MAE A. D'AGOSTINO
United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
By Decision and Order filed on September 14, 2015, the Court revoked plaintiff Carlos

Abreu's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) ("Section 1915(g)")
because he had accumulated three strikes prior to filing this action and did not qualify for the
imminent danger exception set forth in Section 1915(g). Dkt. No. 8 (the "September 2015
Order"). The Court directed plaintiff to pay the entire filing fee if he wished to proceed with
this action. Id. Rather than paying the filing fee, plaintiff filed a motion for reconsideration of
the September 2015 Order. Dkt. No. 13. For the reasons that follow, plaintiff's motion for

reconsideration is denied and plaintiff is granted an extension of time to pay the filing fee.
II.

BACKGROUND
Plaintiff commenced this action as part of a multi-plaintiff action in October, 2012, with

fifteen other inmates. See Weathers, et al. v. Travers, et al., No. 9:12-CV-1582 (GLS/RFT)
("Weathers"). Plaintiff applied for and was granted in forma pauperis status in Weathers. Id.,
Dkt. No. 5.1 The claims that plaintiff asserted on his own behalf in Weathers were eventually
severed from that action, placed in this action, but deemed filed as of the date that Weathers
was filed - October 22, 2012. Dkt. Nos. 6, 7. The history of the Weathers action, including
the severance of plaintiff's claims from Weathers, was set forth in the September 2015 Order
and will not be repeated here.2 See September 2015 Order at 1-4.
In the September 2015 Order, the Court revoked plaintiff's in forma pauperis status
after it determined that the claims that formed the basis of Judge Sharpe's imminent danger
finding were duplicative of claims brought by plaintiff in another action - namely Abreu v. Lira,
No. 9:12-CV-1385 (NAM/DEP) ("Abreu I") - which was filed more than one month before
plaintiff filed the same claims in Weathers, and which were still pending when Weathers was
commenced. See September 2015 Order at 9-11. Specifically, Abreu I was filed on
September 10, 2012, and dismissed on November 7, 2014. See Abreu I at Dkt. Nos. 1, 85.
1

In Weathers, then-Chief United States District Judge Gary L. Sharpe found that plaintiff had
accumulated at least three strikes pursuant to 28 U.S.C. § 1915(g) ("Section 1915(g)") prior to joining in the
complaint in Weathers, but he made a preliminary finding "that plaintiff ha[d] alleged that he was "under imminent
danger of serious physical injury" when he filed this action" on October 22, 2012, and granted plaintiff's in forma
pauperis application. Dkt. No. 5 at 5-6. However, Judge Sharpe cautioned that "plaintiff's in forma pauperis
status will be revoked if, as the case progresses, the Court concludes that he did not face imminent danger of
serious physical injury when he commenced this action or is otherwise not entitled to proceed in forma pauperis."
Id. at 7.
2

For a complete history of Weathers, see the full Decisions and Orders of then-Chief United States
District Judge Gary L. Sharpe issued in that action, copies of which have been docketed in this action for
reference.

2

Plaintiff's claims in this action were filed on October 22, 2012, as part of Weathers. See
Weathers, Dkt. No. 1.
III.

DISCUSSION
A court may justifiably reconsider its previous ruling if: (1) there is an intervening

change in the controlling law; (2) new evidence not previously available comes to light; or (3)
it becomes necessary to remedy a clear error of law or to prevent manifest injustice.
Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New
York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). The standard for granting
a motion for reconsideration is strict. Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257
(2d Cir. 1995). A motion for reconsideration "should not be granted where the moving party
seeks solely to relitigate an issue already decided." Id.3 Thus, a motion for reconsideration is
not to be used for "presenting the case under new theories, securing a rehearing on the
merits, or otherwise taking a 'second bite at the apple.'" Sequa Corp. v. GBJ Corp., 156 F.3d
136, 144 (2d Cir. 1998).
Plaintiff seeks reconsideration of the September 2015 Order to the extent that the
Court revoked his in forma pauperis status. See generally Dkt. No. 13. Plaintiff does not
suggest that there has been an intervening change in the controlling law, nor has he
presented new evidence which was not previously available. Therefore, the only basis for
reconsideration is to remedy a clear error of law or to prevent manifest injustice.
First, plaintiff argues that the Court should not have dismissed his Eighth Amendment

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Generally, motions for reconsideration are not granted 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." Id.

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medical indifference claims against defendants Travers, Marlowe, and Lashway (these claims
will be referred to as the "medical care claims") because the medical care claims were not
baseless or frivolous. Id. at 2. However, the plaintiff misinterprets the September 2015 Order
because the medical care claims were not dismissed on the merits as baseless or frivolous;
they were dismissed as duplicative of claims already pending in Abreu I at the time that
plaintiff raised them in Weathers on October 22, 2012.
Next, plaintiff argues that the medical care claims were "not duplicative claims
because Abreu I was dismissed without prejudice [which] mean[t] that [he could] bring the
claims back in the future in [an]other action . . . such as in 12-CV-1582 [Weathers]." Dkt. No.
13 at 3. Plaintiff therefore argues that his in forma pauperis status was revoked based upon
"erroneous information." Id. at 7. While it is true that the medical care claims were dismissed
without prejudice in Abreu I, those claims were not dismissed until November 7, 2014. See
Abreu I, Dkt. No. 85. Plaintiff reasserted the medical care claims in Weathers, which was
filed on October 22, 2012, when Abreu I was still pending, making them clearly duplicative
of claims still pending.4 The Court also takes notice of the fact that in Abreu I, Judge Mordue
found that plaintiff was not entitled to the benefit of the imminent-danger exception under
section 1915(g) based upon the medical care claims. See Abreu I, Dkt. Nos. 73, 84. The
Court concurs with Judge Mordue's findings in Abreu I and thus could revoke plaintiff's in
forma pauperis status in this case on that alternative basis as well.
The Court has thoroughly reviewed the remainder of plaintiff's motion for

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Additionally, United States District Judge Norman A. Mordue dismissed Abreu I without prejudice for
plaintiff's failure to pay the filing fee after Judge Mordue revoked plaintiff's in forma pauperis status in that action.
Abreu I, Dkt. No. 84. Without the benefit of in forma pauperis status for the medical care claims, plaintiff would
be required to pay the filing fee in full to reassert those claims.

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reconsideration and finds that plaintiff presents no basis for reconsideration of the September
2015 Order. Based upon a review of the relevant law and its application to the facts of this
case, the Court concludes that its previous decision was legally correct and did not work a
manifest injustice.
In light of his pro se status, plaintiff is granted an extension of time to comply with the
September 2015 Order. Therefore, plaintiff must, within thirty (30) days of the filing date of
this Decision and Order, submit the full filing fee of $350.00, which was the statutory filing fee
in effect when this action was originally commenced via the Weathers action on October 22,
2012. If plaintiff fails to timely pay the required filing fee in full, this action will be dismissed
without prejudice without further order of the Court.
IV.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's motion for reconsideration (Dkt. No. 13) is DENIED in all

respects; and it is further
ORDERED that this action shall be DISMISSED without prejudice, without further
order of the Court, if plaintiff fails to pay the full filing fee of three hundred fifty dollars
($350.00) within thirty (30) days of the filing date of this Decision and Order; and it is further
ORDERED that if plaintiff timely pays the entire filing fee, the Clerk shall return the file
to the Court for review of the complaint in accordance with 28 U.S.C. § 1915A;5 and it is

5

Pursuant to 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous,
malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a
defendant who is immune from such relief." 28 U.S.C. § 1915A. The Court expresses no opinion regarding the
sufficiency of plaintiff's complaint at this time.

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further
ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: April 28, 2016
Albany, NY

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