McRae v. Lee et al
DECISION & ORDER denying 34 Motion for Reconsideration. Signed by Hon. Marian W. Payson on 5/23/2017. Copy of this Decision & Order sent by First Class Mail to plaintiff Troy McRae on 5/23/2017. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
DR. LEE, et al.,
Plaintiff Troy McRae (“McRae”), acting pro se, filed a complaint asserting claims
under 42 U.S.C. § 1983, against several defendants employed by the New York State
Department of Corrections and Community Supervision (“DOCCS”) or within DOCCS facilities
alleging, inter alia, that defendants violated his constitutional rights while he was incarcerated.
(Docket # 1). Currently pending before this Court is McRae’s motion for reconsideration of this
Court’s previous Decision & Order denying his request for fees in connection with the litigation.
(Docket ## 33, 34).
In his motion, McRae seeks an award of fees for the time he must expend to
attend his own deposition. (Docket # 34). According to McRae, defendants should be limited to
obtaining trial testimony from him, and he should be compensated for any time he expends at a
deposition noticed by the defendants. (Id.). In his motion, McRae simply seeks to relitigate this
Court’s previous determination. (Id.). Yet, relitigation of previously decided issues is “not a
proper basis for a motion for reconsideration,” and denial of the motion is warranted. See
Charter Oak Fire Ins. Co. ex rel. Milton Fabrics, Inc. v. Nat’l Wholesale Liquidators, 2003 WL
22455321, *1 (S.D.N.Y. 2003), aff’d, 101 F. App’x 860 (2d Cir. 2004).
In any event, Rule 30 of the Federal Rules of Civil Procedure permits litigants to
depose opposing parties upon notice. See Fed. R. Civ. P. 30. Although non-party witnesses
generally are entitled to statutory fees for attendance at a deposition, see 28 U.S.C. § 1821(a)(1);
Fed. R. Civ. P. 45(b)(1), as stated in my previous decision, McRae, as a litigant to this action, is
not entitled to witness fees to attend his own deposition. See Stooksbury v. Ross, 2012 WL
2128026, *2 (E.D. Tenn. 2012) (“[d]efendant . . . , as a party to this action, is not entitled to
attendance fees and mileage”) (collecting cases). Even if McRae’s status as a party to this action
did not disqualify him from receiving statutory witness fees, his status as an incarcerated inmate
would preclude his request for such fees. See 28 U.S.C. § 1821(f). McRae has not provided any
basis for me to reconsider my previous decision denying his request for fees. Accordingly,
McRae’s motion for reconsideration (Docket # 34) is DENIED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
May 23, 2017
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