Barnes v. Pozzi et al

Filing 73

MEMO OPINION AND ORDER: The Court has considered all of the arguments of the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, the motion for reconsideration is granted in part and denied in part. The Clerk is directed to close docket nos. 65 and 66. (Signed by Judge John G. Koeltl on 11/8/2012) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
KHALID BARNES,
Plaintiff,
- against -

10 Civ. 2554 (JGK)
MEMORANDUM OPINION AND
ORDER

COMMISSIONER POZZI, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The pro se plaintiff has moved to alter or amend a judgment
pursuant to Federal Rule of Civil Procedure 59(e).

By a motion

dated August 26, 2012, the plaintiff seeks to have this Court
alter a Memorandum and Opinion of this Court filed August 3,
2012, that granted in part and denied in part the defendants’
motion to dismiss.
As a preliminary matter, the proper vehicle for the
petitioner’s motion is a motion for reconsideration or
reargument pursuant to Local Rule 6.3 rather than a motion
pursuant to Rule 59(e), because there is no judgment to be
amended.

However, the standards under Rule 59(e) and Rule 6.3

are similar.

See Shrader v. CSX Transp., 70 F.3d 255, 257 (2d

Cir. 1995) (“The standard for granting such a motion [for
reconsideration] is strict, and reconsideration will generally
be denied 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.”) (citations omitted); Dietrich v. Bauer,
76 F. Supp. 2d 312, 327 (S.D.N.Y. 1999) (Rule 6.3 is “narrowly
construed and strictly applied so as to avoid repetitive
arguments on issues that have been considered fully by the
court.”) (citations omitted); see also Banco Cent. de Para. v.
Para. Human. Found., Inc., No. 01 Civ. 9649, 2006 WL 1214988, at
*1 (S.D.N.Y. May 4, 2006) (“A Rule 59(e) motion is similar to a
motion for reconsideration under Local Civil Rule 6.3.

In order

to prevail, Principal Defendants must present ‘[factual] matters
or controlling decisions the court overlooked that might
materially have influenced its earlier decision.’”) (quoting
Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368
(S.D.N.Y. 1999)) (alteration in original).
It is true, as the defendants argue, that the motion for
reconsideration is untimely because it was filed more than
fourteen days after the entry of the order sought to be
reconsidered.

However, given the plaintiff’s pro se and

incarcerated status, the Court will not dismiss the present
motion on that basis.

If there was a basis to reconsider the

original decision, it should be corrected now.
In his Amended Complaint, the plaintiff alleged violations
of his constitutional rights at various times while he was

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incarcerated by the Westchester County Department of Corrections
in the Westchester County Jail.

He was housed in the

Westchester County Jail on several occasions while awaiting
trial and during trial on federal charges in federal court.

He

sued various individuals, in their individual capacities, and
his Amended Complaint could also be construed as a complaint for
municipal liability against Westchester County.
The plaintiff alleged numerous acts of retaliation
beginning in March 2005 when he began to file grievances, and
continuing until June 2006, when he was transferred out of the
Westchester County Jail.

On February 8, 2008, 19 month later,

the plaintiff was transferred back to the Westchester County
Jail for trial in the White Plains Courthouse of the United
States District Court for the Southern District of New York.
(Am Compl. ¶¶ 80, 94.)
The plaintiff’s original complaint is dated February 8,
2010.

This Court found that, given the three year statute of

limitations for claims under 28 U.S.C. §1983, see Patterson v.
County of Oneida, 375 206, 225 (2d Cir. 2004), any claims
arising before February 8, 2007 were time barred and were
dismissed.

The Court rejected the plaintiff’s argument that the

continuing violation doctrine could resuscitate claims about
actions in 2005 and 2006.

Among other reasons, the Court

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pointed to the 19 month gap in the plaintiff’s stay at the
Westchester County Jail between June 2006 and February 8, 2008.
The plaintiff now alleges that the Court overlooked his
allegations that he was returned to the Westchester County Jail
for court dates and that on those occasions he was also placed
in the Solitary Housing Unit.

(Am Compl. ¶¶ 76-79.)

In his

motion, although not in the Amended Complaint, the plaintiff
alleges that he was returned to the Westchester County Jail on
five occasions.

His Amended Complaint describes the purpose of

the transfers was for “brief court appearances.”
¶79.)

(Am. Compl.

While these allegations do allege that there were

occasions when the plaintiff was briefly housed in the
Westchester County Jail, allegedly between June 2006 and
February 8, 2008, they are insufficient to allege a continuing
violation sufficient to resuscitate claims from 2005 and 2006.
As the Court pointed out in the original Memorandum Opinion and
Order, the plaintiff has alleged a series of discrete acts and
the plaintiff could have instituted an action challenging those
actions within three years of their occurrence.

Similarly, if

the plaintiff contends that his treatment during the individual
stays at the Westchester County Jail in the period from June
2006 through February 2008 were retaliatory and
unconstitutional, he could have brought a lawsuit within three
years of each of those stays.

The fact that the plaintiff has

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alleged sporadic stays at the Westchester County Jail is
insufficient to allege a continuing violation.

See Shomo v.

City of New York, 579 F3d 176, 182 (2d Cir. 2009) (continuing
violations doctrine does not apply to “discrete acts of
unconstitutional conduct”); see also Chin v. Port Auth. of N.Y.
& N.J., 685 F.3d 135, 156 (2d Cir. 2012).
The motion for reconsideration does leave open the
possibility that he may have had specific stays at the
Westchester County Jail that he is claiming were
unconstitutional and that occurred in the period from February
8, 2007, until he was returned to the Westchester County Jail on
February 8, 2008.

Because those events occurred within three

years of the institution of the current lawsuit, they would not
be barred by the statute of limitations.

Therefore, the prior

Opinion correctly only barred claims arising before February 8,
2007, based on the statute of limitations.
It should also be noted that there is nothing in the
specific paragraphs that the plaintiff points to that make any
specific allegations against any of the individual defendants.
Therefore the claims against the individual defendants remain
dismissed and the only remaining defendant in the case is the
County of Westchester based on an allegation of municipal
liability for any alleged constitutional violations that
occurred from February 8, 2007 until February 8, 2010.

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CONCLUSION

The Court has considered all of the arguments of the
parties.

To the extent not specifically addressed, the

arguments are either moot or without merit.

For the reasons

explained above, the motion for reconsideration is granted in
part and denied in part.

The Clerk is directed to close docket

nos. 65 and 66.
SO ORDERED.
Dated:

New York, New York
November 8, 2012
Koeltl
District Judge

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