Evans v. Griffin et al

Filing 128

DECISION AND ORDER denying 127 Motion for Prospective Relief. Signed by Hon. Michael A. Telesca on 04/20/2017. (CDH) (A copy of this Decision and Order was mailed to pro se plaintiff on 4/20/2017).

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK __________________________________ SHAWN EVANS, #111-A-0681, Plaintiff, No. 13-CV-805(MAT) Decision and Order -vs- CORRECTION OFFICER M.BALMER, et al., Defendants. __________________________________ I. Introduction Pro se plaintiff Shawn Evans (“plaintiff”) instituted this action pursuant to 42 U.S.C. § 1983 alleging that the defendants used excessive Amendment force rights against during Correctional Facility. Decision and Order him his in violation of incarceration his at now filed a Southport On March 24, 2017, the Court entered a granting defendants’ motion for judgment and dismissing the case (Docket No. 122). has Eighth document labeled a “Motion for summary Plaintiff Prospective Relief” (Docket No. 127), which the Court liberally construes as a request for reconsideration of its March 24th Decision and Order. For the reasons set forth below, plaintiff’s motion is denied. -1- II. Discussion A. Reconsideration is Not Warranted The standard under Federal for Rule granting of Civil a motion Procedure for 59(e) 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.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)) (“The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked ‘matters or controlling decisions’ which, had they been considered, might reasonably have altered the result reached by the court.”); Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988) (same)). “The provision for reargument is not designed to allow wasteful repetition of arguments already briefed, considered and decided[,]” omitted), where the Schonberger, and “a moving motion party 742 to F. Supp. reconsider seeks solely at should to 109 not (citations be relitigate granted an issue already decided.” Shrader, 70 F.3d at 257. Here, decisions plaintiff or other has data failed which to would identify warrant any controlling reconsideration. For all the reasons set forth in the Court’s March 24th Decision -2- and Order, plaintiff has failed to establish any triable issue of material fact with respect to his claims, and defendants are entitled to judgement as a matter of law. B. Plaintiff Cannot Seek Release in a § 1983 Action In his “Motion for Prospective Relief,” plaintiff has also included criminal a request that conviction challenging ‘the he be be released expunged. very fact or from prison “[W]hen duration a of and his prisoner is his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, corpus.’” (quoting his sole federal remedy is a writ of habeas Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006) Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). Plaintiff cannot seek release from custody as an incident to this § 1983 action and, as a result, any such request set forth in his “Motion for Prospective Relief” is denied. III. Conclusion For the reasons stated above, plaintiff’s “Motion Prospective Relief” (Docket No. 127) is denied. ALL OF THE ABOVE IS SO ORDERED. S/ MICHAEL A. TELESCA HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE DATED: Rochester, New York April 20, 2017 -3- for

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