Lasher v. D'Agastino et al
Filing
16
DECISION AND ORDER: ORDERED that plaintiff's motion for reconsideration (Dkt. No. 15 ) is DENIED. ORDERED that in light of plaintiff's pro se status, the Court sua sponte grants plaintiff an extension of time until thirty (30) days from the filing date of this Decision and Order to comply with the April 2016 Order. Plaintiff's failure to comply with the April 2016 Order by that time will result in dismissal of this action without prejudice without further order of this Court. Signed by Judge Brenda K. Sannes on 6/13/16. (served on plaintiff with unpublished decision cited herein by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
STACY LASHER
a/k/a Stacy D. Lasher,
Plaintiff,
v.
9:16-CV-0198
(BKS/TWD)
DOMINIC DAGOSTINO, et al.,
Defendants.
APPEARANCES:
STACY LASHER
23935
Plaintiff, pro se
Schenectady County Jail
320 Veeder Avenue
Schenectady, NY 12307
BRENDA K. SANNES
United States District Judge
DECISION AND ORDER
Plaintiff Stacy Lasher commenced this action by submitting a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") together with an application to
proceed in forma pauperis. Dkt. No. 1 ("Compl."), Dkt. No. 6 ("IFP Application"). Plaintiff
requested appointment of pro bono counsel. Dkt. No. 10. In the complaint, plaintiff alleged
that his constitutional rights were violated during his confinement at the Schenectady County
Jail. See generally Compl. Specifically, plaintiff alleged that he was denied access to the
courts in violation of his constitutional rights because the defendants denied him access to
adequate legal materials, his grievances were not adequately addressed, and defendants
violated state regulations. See generally Compl. By Decision and Order filed on April 28,
2016, plaintiff's IFP Application was granted and the sufficiency of the complaint was
considered in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Dkt. No. 14 (the
"April 2016 Order"). On the basis of that review, the Court determined that the complaint
failed to state a claim upon which relief may be granted under Section 1983. Id. at 8-15. In
light of plaintiff's pro se status, he was granted the opportunity to file an amended complaint.
Id. at 15-16. In addressing plaintiff's motion for appointment of counsel, the Court stated as
follows:
The Second Circuit has articulated several factors for determining
whether to appoint counsel to an indigent civil litigant pursuant to 28 U.S.C. §
1915(e). Those factors include: the litigant's likelihood of success on the
merits; the complexity of the legal issues raised by the complaint; and the
litigant's ability to investigate and present the case. See Hodge v. Police
Officers, 802 F.2d 58, 61-62 (2d Cir. 1986); see also Wenger v. Canastota
Cent. Sch. Dist., 146 F.3d 123, 125 (2d Cir. 1998). Of these criteria, the most
important is the merits; i.e., "'whether the indigent's position was likely to be of
substance.'" McDowell v. State of N.Y., No. 91 Civ. 2440, 1991 WL 177271, at
*1 (S.D.N.Y. Sept. 3, 1991) (quoting Cooper v. A. Sargenti Co., Inc., 877 F.2d
170, 172 (2d Cir. 1989)).
April 2016 Order at 18. Because the complaint did not survive sua sponte review under 28
U.S.C. § 1915(e) and 28 U.S.C. § 1915A(b), plaintif f failed to establish that his claim is likely
to be of substance, and his motion for appointment of counsel was denied. Id. at 18, 20. 1
Presently before the Court is plaintiff's motion seeking reconsideration of that portion
of the Court's April 2016 Order which denied plaintiff's request for appointment of pro bono
counsel. Dkt. No. 15.
A court may justifiably reconsider its previous ruling if: (1) there is an intervening
1
Plaintiff also filed a motion requesting preliminary injunctive relief. Dkt. No. 5. That motion was
denied. April 2016 Order at 16-18, 20.
2
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.2 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).
By his motion, plaintiff argues that he requires the assistance of counsel "due to the
intricacies of 42 U.S.C. 1983" and because there is no law library at the Schenectady County
Jail where he is presently confined. Dkt. No. 15 at 1-2. 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.
Construed liberally, plaintiff appears to claim that he cannot prepare an amended
complaint without the assistance of counsel because he allegedly has no access to a law
library or legal materials. However, plaintiff does not need an attorney or access to a law
library to in order to replead his denial of access to the courts claim. Instead, in any
amended complaint that he files, he must demonstrate how, if at all, the inadequate law
2
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.
3
library at Schenectady County Jail "'hindered his efforts' to pursue a non-frivolous legal
claim." April Order at 14 (citing Lewis v. Casey, 518 U.S. 343, 349, 351-53 (1996)). Plaintif f
himself would have the factual information to explain "what court action or proceeding [that
he filed or intended to file] was actually frustrated as a result of his inability to receive, or to
timely receive, legal materials."3 April Order at 15.4
Additionally, there is nothing in plaintiff's motion for reconsideration to plausibly
suggest that any of the claims he asserted in his complaint have merit. In Cooper v.
Sargenti, 877 F.2d at 173-74, the Second Circuit cautioned the district courts ag ainst the
routine appointment of counsel and reiterated the importance of requiring an indigent to pass
the test of likely merit since "[v]olunteer lawyer time is a precious commodity." Id. "Every
assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer
lawyer available for a deserving cause." Id.
After thoroughly reviewing plaintiff's motion and affording it due consideration in light
of his status as a pro se litigant, the Court finds that plaintiff presents no basis for
reconsideration of the April 2016 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. Thus, plaintiff's motion for reconsideration (Dkt.
No. 15) of the April 2016 Order is denied in its entirety.
3
Attached to plaintiff's motion is an affirmation from an assistant district attorney from Schenectady
County arguing that a pro se motion filed by plaintiff in Schenectady County Court on April 7, 2016, should be
denied as without merit and untimely filed. Dkt. No. 15 at 3-6. The information contained in the affirmation does
not warrant reconsideration of plaintiff's request for appointment of pro bono counsel. Information about any
frustrated court action would more properly put forth in a an amended complaint.
4
In his complaint, plaintiff also alleged that his grievances were not adequately addressed and
defendants violated state regulations. See generally Compl. Those claims are not cognizable claims under
Section 1983 and therefore the claims are not curable through amendment. April Order at 13-15. Even if they
were curable, any amendment would also require facts gathered from plaintiff's own personal experiences.
4
WHEREFORE, it is hereby
ORDERED that plaintiff's motion for reconsideration (Dkt. No. 15) is DENIED; and it is
further
ORDERED that in light of plaintiff's pro se status, the Court sua sponte grants plaintiff
an extension of time until thirty (30) days from the filing date of this Decision and Order to
comply with the April 2016 Order. Plaintiff's failure to comply with the April 2016 Order by
that time will result in dismissal of this action without prejudice without further order of this
Court; and it is further
ORDERED that the Clerk of the Court shall provide plaintiff with copies of the
unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: June 13, 2016
Syracuse, NY
5
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