Fleming v. Scranton, PA Lackawanna County et al

Filing 9

MEMORANDUM re 8 MOTION to Reopen Case filed by Steven Paul Fleming Signed by Honorable A. Richard Caputo on 7/30/12. (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEVEN PAUL FLEMING,
CIVIL ACTION NO. 3:12-CV-824
Plaintiff,
(JUDGE CAPUTO)
v.
(MAGISTRATE JUDGE SMYSER)
SCRANTON, PA LACKAWANNA
COUNTY, ET AL.,
Defendants.
MEMORANDUM
Presently before the Court is Plaintiff Steven P. Fleming’s Motion to Reopen. (Doc.
8.) On May 18, 2012, Magistrate Judge Smyser issued a Report and Recommendation in
this matter, recommending that the Complaint be dismissed for res judicata as the
allegations were materially the same as those made in a previous claim which was
dismissed for failure to state a claim. See Fleming v. Scranton, PA, Lackawanna County,
1:11-CV-386, 2011 WL 2791286 (M.D. Pa. July 14, 2011), aff’d, 461 F. App’x 170 (3d Cir.
2012).

On June 26, 2012, I adopted Magistrate Judge Smyser’s Report and

Recommendation.
Fleming now moves the Court to reopen, arguing that the instant Complaint
sufficiently establishes that Judge Smyser is biased and that he has successfully pleaded
claims which require oral argument and a jury. As such, I will construe this motion as one
for reconsideration, which requires at least one of the following: “(1) an intervening change
in controlling law; (2) the availability of new evidence that was not available when the court
granted the motion for summary judgment; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice.” Max's Seafood Café, by Lou-Ann, Inc., v. Quinteros,

176 F.3d 669, 677 (3d Cir.1999). The instant motion raises no new facts or arguments.
Instead, it is a renewed attempt to reargue the merits of his Complaint, which is not
permissible. “A motion for reconsideration is not to be used as a means to reargue matters
already argued and disposed of or as an attempt to relitigate a point of disagreement
between the Court and the litigant.” Ogden v. Keystone Residence, 226 F. Supp.2d 588,
606 (M.D. Pa. 2002). As such, this Motion will be denied.
An appropriate order follows.

July 30, 2012
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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