McCollough v. Hale et al

Filing 54

OPINION & ORDER re: 51 MOTION for Reconsideration. filed by Michael McCollough, 53 MOTION for Reconsideration. filed by Michael McCollough. For the foregoing reasons, Plaintiff's motions for reconsideration is DENIED. The Clerk of the Court is respectfully directed to terminate the motions at ECF No. 51 and 53, to send this Opinion to Plaintiff, and to show proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 1/30/2019) (rj) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL McCOLLOUGH,
Plaintiff,
-against-

No. 16-CV-1783 (NSR)
OPINION & ORDER

THOMAS GRIFFIN,
Defendant.

NELSON S. ROMAN, United States District Judge
Plaintiff Michael McCollough, proceedingpro se, brought this action against Defendant
Thomas Griffin alleging violations of 42 U.S.C. § 1983. ("Amended Complaint," ECF No. 15.)
On October 25, 2018, this Court issued an Opinion and Order granting Defendant's motion to
dismiss the Amended Complaint and granting Plaintiff leave to file a second amended complaint
until November 26, 2018. ("Opinion & Order," ECF No. 41.) On December 20, 2018, Plaintiff
attempted to file a second amended complaint, (see ECF No. 45), and Defendant submitted a
letter requesting that the Court reject Plaintiffs second amended complaint as untimely or grant
a pre-motion conference for Defendant's anticipated motion to dismiss. (See ECF No. 46.) On
January 2, 2019, the Court issued an order granting Defendant's application to reject the
proposed second amended complaint. ("Order," ECF No. 47.) Presently before the Court are
Plaintiffs motions for reconsideration of the Order. (ECF Nos. 51 & 53.) For the following
reasons, Plaintiffs motions for reconsideration are DENIED.

LEGAL STANDARD
Reconsideration of a Court's previous order is "an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources." In re Initial

Pub. Offering Sec. Litig., 399 F. Supp. 2d 298,300 (S.D.N.Y. 2005) (internal citation and

quotation omitted), ajf'd sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05-CV-3430,
2006 WL 1423785, at *l (2d Cir. 2006). Motions for reconsideration are governed by Local
Civil Rule 6.3 and Federal Rule of Civil Procedure 60(b), and "[t]he standard for granting a
motion for reconsideration ... is strict." Targum v. Citrin Cooperman & Co., LLP, No. 12-CV6909 (SAS), 2013 WL 6188339, at *l (S.D.N.Y. Nov. 25, 2013). Indeed, 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.' " Pac. Life Ins. Co. v. Bank of New York Mellon, No. l 7-CV1388 (KPF), 2018 WL 1871174, at *l (S.D.N.Y. Apr. 17, 2018) (quoting Shrader v. CSX
Transp., Inc., 70 F.3d 255,257 (2d Cir. 1995)). A motion for reconsideration, however, "is not a
vehicle for ... presenting the case under new theories ... or otherwise taking a second bite at the
apple." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(quotation and citation omitted). Nor is such a motion "an occasion for repeating old arguments
previously rejected .... " RSM Prod. Corp. v. Fridman, No. 06-CV-11512, 2008 WL 4355406,
at *2 (S.D.N.Y. Sept. 23, 2008) (internal quotation marks omitted).
Further, the decision to grant or deny a motion for reconsideration rests within "the sound
discretion of the district court." Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (internal
quotation marks omitted).
DISCUSSION
Through Plaintiffs motions for reconsideration, Plaintiff, citing to Johnson v. Avery, 393
U.S. 483, 494 n. l 0 (1969), argues that prose litigants require different treatment than parties
represented by counsel and that the Court should have allowed him additional time to file his
second amended complaint. He also argues that his delivery of the second amended complaint to
2

the Court occurred timely on November 26, 2018 and that he requested an extension of time in a
letter dated October 20, 2018 but that this letter was never answered.
The Court finds that these arguments are without merit and, moreover, are not indicative
of a misapplication of the law.
First, while Plaintiff is correct that pro se plaintiffs are entitled to lenient treatment,

Johnson does not support his argument that this leniency requires the Court to accept his
untimely second amended complaint. See McDonald v. Head Criminal Court Supervisor

Officer, 850 F.2d 121, 124 (2d Cir. 1988). Instead, in Johnson, the Supreme Court held that a
state regulation prohibiting inmates from assisting other inmates in preparation of petitions for
postconviction relief was a violation of habeas corpus. Johnson, 393 U.S. at 490. Unlike the
Plaintiff in Johnson, Plaintiff has already prepared and the Comi has reviewed two petitions for
relief, his initial complaint and then his first amended complaint. (ECF Nos. 1 & 15.) Plaintiffs
second amended complaint was dismissed because Plaintiff failed to follow a Court order. The
Court has afforded Plaintiff with the leniency required for those proceeding prose and
reconsideration is not warranted. See McDonald, 850 F.2d at 124 ("[A]ll litigants, including pro

ses, have an obligation to comply with court orders.").
Second, there is no evidence that Plaintiff mailed a second amended complaint to the
Court by November 26, 2018 or that he requested an extension of time to file a second amended
complaint. The earliest postmark on the envelope containing the second amended complaint is
December 7, 2018. (ECF No. 45.) The certificate of service accompanying the second amended
complaint is dated, by Plaintiff, December 5, 2018. (Id.) Both of these dates are after the
deadline set by the Court for a second amended complaint. Additionally, the docket is devoid of
evidence of an October 20, 2018 request for extension in time to file a second amended

3