Hughes v. Smolinski et al
Filing
79
DECISION AND ORDER: It is ORDERED that Plaintiff's motion for reconsideration (Dkt. No. 77 ) is DENIED; and it is further ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on the parties in accordance with the Local Rules. Signed by Magistrate Judge Miroslav Lovric on August 21, 2019. (Copy served on plaintiff via regular mail at Collins Correctional).(rep)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MAURICE HUGHES,
Plaintiff,
v.
9:17-CV-1151
(DNH/ML)
MAHMOOD BUTT, et. al.,
Defendant(s).
APPEARANCES:
MAURICE HUGHES
18-B-1404
Plaintiff, Pro se
Collins Correctional Facility
P.O. Box 340
Collins, NY 14034
Steinberg, Symer & Platt, LLP
Attorneys for Defendants
27 Garden Street
Poughkeepsie, NY 12601
Jonathan E. Symer, Esq.
MIROSLAV LOVRIC
United States Magistrate Judge
DECISION AND ORDER1
I.
INTRODUCTION
Pro se plaintiff Maurice Hughes ("Plaintiff") commenced this civil rights action
asserting claims arising out of his confinement at Broome County Correctional Facility
("Broome County C.F."). Dkt. No. 1 ("Compl."). The procedural history of this litigation was
1
On July 1, 2019, this matter was reassigned to the undersigned due to Magistrate Judge
Peebles' retirement. Dkt. No. 74.
1
summarized in this Court's Decision and Order filed on July 9, 2019 (the "July Order") and
will not be restated herein. See Dkt. No. 76 at 1-3. In the July Order, the Court granted
Plaintiff's request for reconsideration of the Court's prior Order and reviewed Plaintiff's motion
for counsel. See generally, Dkt. No. 76. The Court concluded that, "no change of
circumstances that would warrant appointment of counsel pro bono for Plaintiff at this time."
Id. at 5.
Presently before the Court is Plaintiff's motion for reconsideration of the July Order.
Dkt. No. 77. Defendants oppose the motion. Dkt. No. 78.
II.
DISCUSSION
The law related to motions for reconsideration was discussed in the July Order and
will not be restated herein. See Dkt. No. 76 at 3-4. With his second motion, Plaintiff seeks
reconsideration of the July Order arguing that he "had a severe stroke"2 and as a result, he
has difficulty reading, writing, comprehending, and speaking. See Dkt. No. 77 at 1. In
support of the motion, Plaintiff provided a copy of his Request for Reasonable
Accommodations filed on July 16, 2019. See id. at 3-5. In the request, Plaintiff claims he
suffers from "visual impairments" due to "surgery" and that he "had a stroke and [has]
difficulty reading, writing, and speaking[.]" See id. Plaintiff requested a transfer to "an
accommodating facility." See id. at 5.
With the motion, Plaintiff has not presented the Court with "new evidence" which was
"not previously available."
"When
newly discovered
evidence
is
the
basis
for
2
It is not clear from the submission when Plaintiff suffered a stroke or whether he is referring to
the stroke he allegedly suffered in March or April 2019. See Dkt. No. 76 at 4, n.3.
2
reconsideration, the proponent must demonstrate that the
newly discovered evidence was neither in his possession nor
available upon the exercise of reasonable diligence at the time
the interlocutory decision was rendered." LaSalle Bank Nat'l
Assoc. v. Capco Am. Securitization Corp., No. 02 CV 9916,
2006 WL 177169, at *2 (S.D.N.Y. Jan. 25, 2006) (internal
quotations marks, citation, and emphasis deleted); cf. Tri-Star
Pictures, Inc. v. Leisure Time Prods., B.V., No. 88 Civ. 9127,
1992 WL 296314, at *3 (S.D.N.Y. Oct. 6, 1992) ("The Court will
not set aside a judgment because a frustrated litigant failed to
present on a motion for summary judgment all facts known by
or reasonably available to him.").
U.S. v. Morrison, No. 04-CR-699, 2007 WL 4326796, at *2 (E.D.N.Y. Dec. 7, 2007).
The facts now alleged by Plaintiff relate to events that occurred after the Court issued
the July Order. Because a motion for reconsideration cannot be used "to advance new facts,
issues or arguments not previously presented to the Court," see Davidson v. Scully, 172 F.
Supp. 2d 458, 461 (2d Cir. 2001), the evidence and arguments put forward by Plaintiff do not
provide a basis for reconsideration of the July Order.
The Court will now address whether reconsideration is necessary to remedy a clear
error of law or to prevent manifest injustice. Plaintiff claims that he is receiving assistance
from law clerks in the facility law library, but argues that "law clerks are not attorneys and are
subject to mistakes."3 See Dkt. No. 77 at 1. As discussed in the July Order, Plaintiff's
submissions do not support his argument that counsel is necessary so that he may "litigate
this matter properly." See Dkt. No. 76 at 5. In the July Order, the Court noted
Plaintiff's alleged neurological impairments have not prevented
him from filing recent motions and letters with the Court. See
Candelaria v. Geifinger, No. 96-CV-0017 (RSP/DS), 1998 WL
312375, at *2 (N.D.N.Y. June 8, 1998) (denying motion to
appoint counsel because the plaintiff’s health did not prevent
3
Plaintiff contends that the law clerk "typed" his motion. See Dkt. No. 77 at 1.
3
him from effectively litigating the action). Since February 2019,
Plaintiff has filed motions, requests for extensions of time, and
letters that are typewritten and include coherent arguments.
See Dkt. Nos. 69, 70, 72, and 75. Moreover, Plaintiff's medical
condition did not prevent him from "recently" communicating
his concerns regarding his health care with DOCCS' officials,
from filing a Freedom of Information Law request for his
medical records, or from completing a medical authorization for
the release of medical records to the Court. See Dkt. Nos. 72
and 75 at 4, 6.
Dkt. No. 76 at 5.
Here, while Plaintiff claims that the law clerk "typed" the motion, Plaintiff has
effectively communicated his arguments to the Court. Moreover, Plaintiff provided copies of
his handwritten Request for Accommodation, completed in July 2019, and does not contend
that he required or obtained assistance writing or completing those requests.
Plaintiff has not cited to any caselaw which would mandate that the Court's prior
decision be vacated and has not demonstrated an intervening change in controlling law, nor
has he articulated any clear legal error. While Plaintiff disagrees with the prior Order, Plaintiff
has not made any showing that reconsideration of the Order is warranted. See, e.g., Banco
de Seguros Del Estado v. Mut. Marine Offices, Inc., 230 F.Supp.2d 427, 431 (S.D.N.Y. 2002)
(denying motion for reconsideration where movant "reargue[d] the points it made during the
initial briefing and . . . explain[ed] to the Court how its analysis is 'erroneous' "); United States
v. Delvi, No. S1201 CR 74, 2004 W L 235211, at *2 (S.D.N.Y. Feb. 6, 2004) (denying motion
for reconsideration where movant "point[ed] to no facts or law that the Court overlooked in
reaching its conclusion, and instead simply reiterate[d] the facts and arguments that the
Court already considered and rejected"). Therefore, for the reasons set forth herein and in
the July Order, Plaintiff's motion for reconsideration (Dkt. No. 77) is denied.
4
III.
CONCLUSION
WHEREFORE, it is
ORDERED that Plaintiff’s motion for reconsideration (Dkt. No. 77) is DENIED; and it is
further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
the parties in accordance with the Local Rules.
Dated: August 21, 2019
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