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).

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
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for