Smith v. Goord et al
Filing
63
DECISION AND ORDER denying 61 Motion for Reconsideration re 61 MOTION for Reconsideration filed by Andre Smith. Signed by Hon. Charles J. Siragusa on 12/1/11. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
ANDRE SMITH,
Plaintiff,
vs.
DECISION AND ORDER
07-CV-6265
CORRECTIONS OFFICER AUGUSTINE, et al.,
Defendants.
___________________________________________
Siragusa, J. Before the Court is Plaintiff's pro se letter request,1 dated October 19,
2011, which the Court construes as one for reconsideration of the Court's Decision and
Order entered on August 31, 2011, ECF No. 56, which granted partial summary judgment
to Defendants. Plaintiff contends although he did not exhaust administrative remedies
through the New York State Department of Correctional and Community Services
grievance procedures, he did through other channels.
As the Fifth Circuit has recognized, “[t]here is no motion for ‘reconsideration’ in the
Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d
367, 371 n. 10 (5th Cir.1998). Since the Federal Rules of Civil Procedure do not expressly
provide for motions for reconsideration, such a motion may be construed as a motion to
1
The letter request does not indicate that it has been served on opposing counsel. The
Court is aware that Plaintiff is currently incarcerated in the State of California on a felony conviction
there, and may be in transit. Accordingly, the Court will excuse Plaintiff’s failure to serve opposing
counsel and will send a copy of the letter request to counsel.
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alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst &
Whinney, 489 U.S. 169, 174 (1989).“The standard for granting such a motion 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). Further, a motion for reconsideration pursuant to Rule
59(e) must be filed within ten days of the district court’s judgment. Bass v. U.S. Dept. of
Agriculture, 211 F.3d 959, 962 (5th Cir. 2000).
Here, the letter application was received by the Court on November 3, 2011, and
postmarked on October 31, 2011. Since the Court’s Decision and Order was docketed on
August 31, 2011, this letter request does not qualify for consideration under Rule 59(e).
Considering it under Rule 60(b), the Court determines that Plaintiff has not met the strict
standard for reconsideration, and denies his request. The issue Plaintiff raises was
thorougly addressed by the Court in its Decision and Order, at 7–9, ECF No. 56. Plaintiff,
in his letter application, refers to a grievance SPT 34804, whereas the documents before
the Court showed that the grievance was SPT 34084. Id. at 8–9. The Court stated in its
prior Decision that, “, the law is clear that a litigant cannot create a material issue of fact
by filing an affidavit that contradicts his deposition testimony.” Id. at 10. Plaintiff’s letter
application attempts to do just that. Accordingly, it is hereby,
ORDERED, that Plaintiff’s letter application, dated October 19, 2011, and
postmarked on October 31, 2011, shall be docketed by the Clerk as a motion for
reconsideration and served on opposing counsel via the Court’s Electronic Case Filing
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system; and it is further
ORDERED, that Plaintiff’s letter application for reconsideration, ECF No. 61, of the
Court’s Decision and Order, ECF No. 56, granting partial summary judgment to
Defendants, is denied.
It Is So Ordered.
DATED:
December 1, 2011
Rochester, New York
ENTER.
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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