Gambino v. Payne et al

Filing 310

DECISION AND ORDER denying 305 Motion for Reconsideration, 306 Motion for Reconsideration and 307 Motion for Reconsideration. Signed by Hon. Michael J. Roemer on 10/31/2016. (RAZ) Copy of Decision and Order and docket entry mailed to pro se plaintiff at Fort Dix Federal Correctional Institution.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
DAVID AUGUST GAMBINO,

12-CV-824-LJV-MJR
DECISION AND ORDER

Plaintiff,
-vCAPTAIN PAYNE, et al.,
Defendants.
_______________________________
This case has been referred to the undersigned for all pre-trial matters, including
the hearing and disposition of non-dispositive motions. (Dkt. No. 221). Before the
Court are plaintiff David August Gambino’s motions for reconsideration of/objections to
the Court’s October 6, 2016 Decision and Order (Dkt. No. 304). (See Dkt. Nos. 305,
306, 307). The October 6, 2016 Decision and Order granted in part and denied in part
Gambino’s motion to compel defendants to produce documents (Dkt. No. 298), but
denied five other non-dispositive motions that he had filed concerning discovery and
other matters. 1
DISCUSSION
The standard for granting reconsideration is strict. Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995). “[R]econsideration 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
1

Specifically, the October 6, 2016 Decision and Order denied these five motions: (1) a motion for
sanctions (Dkt. No. 283); (2) a motion for reconsideration (Dkt. No. 293); (3) a motion to stay all case
management order deadlines pending the release of certain documents purportedly being held by the
Bureau of Prisons (Dkt. No. 295); (4) a motion to compel the Bureau of Prisons to produce documents
(Dkt. No. 296); and (5) a motion to stay this action pending the outcome of Gambino’s interlocutory
appeal to the Second Circuit (Dkt. No. 300). (Dkt. No. 304).

reached by the court.”

Id.

“The major grounds justifying reconsideration are an

intervening change of controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks and citation
omitted). “A motion for reconsideration is not to be used as a means to reargue matters
already argued and disposed of by prior rulings or to put forward additional arguments
that a party could have made but neglected to make . . . .” Brown v. Middaugh, No. 96CV-1097, 1999 WL 242662, at *1 (N.D.N.Y. Apr. 21, 1999).
After carefully reviewing Gambino’s motions for reconsideration, the Court finds
that they simply rehash arguments already considered and rejected by the Court in its
October 6, 2016 Decision and Order. Gambino has not identified an intervening change
of controlling law or any new evidence that might warrant reconsideration. The Court’s
prior order was correct in all respects and did not work a manifest injustice upon
Gambino. Accordingly, Gambino’s motions for reconsideration are denied.
Gambino’s motions also “object” to the October 6, 2016 Decision and Order. A
party may serve and file objections to a Magistrate Judge’s order on a non-dispositive
motion. 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(a); L.R. Civ. P. 72(a). The assigned
District Judge “must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). It is unclear
whether Gambino is in fact objecting to the October 6, 2016 Decision and Order
pursuant to §636(b)(1), Federal Rule of Civil Procedure 72(a), and Local Rule of Civil
Procedure 72(a), as his motions do not cite any of those provisions. To the extent that

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Gambino is so objecting, his objections are before the assigned District Judge, Hon.
Lawrence J. Vilardo.
CONCLUSION
For the foregoing reasons, Gambino’s motions for reconsideration of the Court’s
October 6, 2016 Decision and Order (Dkt. Nos. 305, 306, 307) are denied.
objections to the October 6, 2016 Decision and Order are before Judge Vilardo.
SO ORDERED.
Dated:

October 31, 2016
Buffalo, New York

/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge

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