Lewis v. Scott et al

Filing 14

DECISION AND ORDER: ORDERED, that plaintiff's motion for reconsideration (Dkt. No. 13 ) is DENIED. 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 four hundred dollars ($400.00) within thirty (30) days of the filing date of this Decision and Order. Signed by Senior Judge Thomas J. McAvoy on 2/29/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ALFREDO LEWIS,
Plaintiff,
9:15-CV-1098
(TJM/CFH)

v.

SCOTT, et al.,
Defendants.

APPEARANCES:
ALFREDO LEWIS
14-R-1737
Plaintiff, pro se
Riverview Correctional Facility
P.O. Box 247
Ogdensburg, NY 13669
THOMAS J. MCAVOY
Senior United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Plaintiff commenced this action by filing a pro se civil rights complaint pursuant to 42

U.S.C. § 1983 ("Section 1983"). Dkt. No. 2 ("Compl.").1 Plaintiff requested leave to proceed
in forma pauperis. Dkt. No. 7 ("IFP Application"). By Decision and Order filed November 24,
2015, the Court denied plaintiff's IFP Application pursuant to 28 U.S.C. § 1915(g) ("Section
1915(g)") because plaintiff had accumulated "three strikes" and was not entitled to the
imminent danger exception. Dkt. No. 10 (the "November 2015 Order"). Plaintiff was advised
1

This action was originally filed in the Southern District of New York, and was transferred to this District
by Chief United States District Judge Loretta A. Preska of the Southern District of New York. Dkt. No. 3.

that this action would be dismissed without prejudice, without further order of the Court if,
within thirty (30) days of the filing date of November 2015 Order, he failed to either (1) pay
the full filing fee of four hundred dollars ($400.00) or (2) show that he is not the plaintiff in the
three actions or appeals cited in the November 2015 Order that were found to constitute
strikes. Id. On January 25, 2016, plaintiff was granted an extension of time until February
22, 2016, to comply with the November 2015 Order. Presently before the Court is plaintiff's
motion for reconsideration of the November 2015 Order. Dkt. No. 13. Plaintiff has not paid
the $400.00 filing fee.
II.

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) (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. Furthermore, 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).
In his motion for reconsideration, plaintiff admits that he is the plaintiff in the three
actions or appeals cited in the November 2015 Order that were found to constitute strikes.

2

Dkt. No. 13 at 1 (stating that "yes I am the person who filed those complaints that are listed).
Despite this admission, and his non-payment of the full filing fee, plaintiff argues that he
should not be barred from filing a complaint pursuant to Section 1983 "if that is the only way
to fight off any violation of the state." Id. Construed liberally, plaintiff asserts that denial of
IFP status and the requirement that he pay the filing fee denies him access to the courts.
However, the Second Circuit has clearly held that the fee requirements set forth in 28 U.S.C.
§ 1915 do not violate a prisoner's right of access to the courts. Nicholas v. Tucker 114 F.3d
17, 21 (2d Cir. 1997) (requiring prisoners to pay fees does not violate a prisoner's access to
the courts); accord Tucker v. Branker, 142 F.3d 1294, 1297 (D.C.Cir. 1998); Shabazz v.
Parsons, 127 F.3d 1246, 1248-49 (10th Cir. 1997); Norton v. Dimazana, 122 F.3d 286, 28991 (5th Cir. 1997); Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir. 1997); Hampton v. Hobbs,
106 F.3d 1281, 1284-86 (6th Cir. 1997).
To the extent that plaintiff's motion could be liberally interpreted to challenge the
constitutionality of Section 1915(g), which requires him to pay the filing fee in order to
proceed, this aspect of his motion is also without merit. See Polanco v. Hopkins, 510 F.3d
152, 156 (2d Cir. 2007) (upholding constitutionality of Section 1915(g)) (citing Rodriguez v.
Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) (holding that Section 1915(g) does not
unconstitutionally deny a prisoner's access to the courts); White v. Colorado, 157 F.3d 1226,
1233 (10th Cir. 1998) (rejecting right of access challenge to Section 1915(g)); Rivera v. Allin,
144 F.3d 719, 723-24 (11th Cir. 1998) (same); Carson v. Johnson, 112 F.3d 818, 821 (5th

3

Cir. 1997) (same)).2
The Court has thoroughly reviewed plaintiff's motion for reconsideration and finds that
plaintiff presents no basis for reconsideration of the November 2015 Order. Therefore, his
motion for reconsideration (Dkt. No. 13) is denied.
In light of plaintiff's pro se status, he is granted a final extension of time to pay the full
filing fee for this action. Thus, plaintiff must, within thirty (30) days of the filing date of this
Decision and Order, submit the full filing fee of $400.00. 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.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's motion for reconsideration (Dkt. No. 13) is DENIED; 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 four hundred dollars ($400.00)
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; 3 and it is

2

In Polanco, the Second Circuit noted that in forma pauperis status "'is not a constitutional right' but
rather a 'congressionally created benefit' which can be 'extended or limited by Congress.'" Polanco, 510 F.3d at
156.
3

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

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further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: February 29, 2016

sufficiency of plaintiff's complaint at this time.

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