Montanez v. Keller et al

Filing 60

MEMORANDUM ORDER DISMISSING CASE, ORDER DENYING 59 MOTION to Appoint Counsel filed by Domingo Colon Montanez, ORDER DENYING 51 MOTION for Reconsideration re 47 Order on Report and Recommendations. Signed by Honorable A. Richard Caputo on 1/5/16. (jam) Modified on 1/5/2016 (jam).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DOMINGO COLON-MONTANEZ,

CIVIL ACTION NO. 3:CV-13-2564

Plaintiff,
v.
RICHARD KELLER, et al.,
Defendants.

(JUDGE CAPUTO)

(MAGISTRATE JUDGE
MEHALCHICK)
MEMORANDUM ORDER

Presently before me are (1) Plaintiff’s motion for reconsideration (Doc. 51) of my
Order adopting Magistrate Judge Mehalchick’s Report and Recommendation (Doc. 47) and
(2) Plaintiff’s motion to appoint counsel and for a temporary restraining order (Doc. 59).
Because Plaintiff has failed to establish any intervening change in law, previously
unavailable evidence, or a manifest injustice, his motion for reconsideration will be denied.
Plaintiff’s motion to appoint counsel and for a temporary restraining order will also be denied.
Plaintiff Domingo Colon-Montanez is an inmate incarcerated within the state
correctional system. On October 15, 2013, Plaintiff commenced this action under 42 U.S.C.
§ 1983 against Former Attorney General Kelly, Department of Corrections Secretary Wetzel,
Deputy Secretary Klopotoski, and the following SCI-Dallas employees: Superintendent
Walsh, Deputy Superintendents Demming and Mahally, Major Gordon, Captain Pall, Unit
Managers Josefewicz and Putnam, Counselors Keller and Pyzia, and Pyschology Supervisor
Miskell. Plaintiff alleges that Defendants violated his First, Fourth, Eighth, and Fourteenth
Amendment rights when they denied him mental health care, removed his single-cell (“Z
Code”) status, issued false misconducts to him, and transferred him between institutions.
On April 14, 2014, Defendants filed a motion to dismiss (Doc. 25) and Plaintiff filed
a brief in opposition on June 12, 2014 (Doc. 33). On December 16, 2014, Magistrate Judge
Mehalchick issued a Report and Recommendation (Doc. 34), recommending that
Defendants’ motion to dismiss be granted and that Plaintiff’s complaint be dismissed for
failure to state a claim. On January 20, 2015, I issued an Order adopting the Report and

Recommendation. (Doc. 35.)
On January 22, 2015, Plaintiff filed a Notice of Change of Address stating that he had
been transferred to a different correctional institution on January 13, 2015, and alleged that
all of his legal mail had been confiscated. (Doc. 36.) Plaintiff asserted that as a result, he
had not been able to file timely objections to the Report and Recommendation. He
subsequently filed a motion for leave to file objections to the Report and Recommendation
and a motion for extension of time to file an amended complaint (Docs. 37 & 39), which I
granted on February 6, 2015 (Doc. 43). However, Plaintiff failed to file an amended
complaint. Instead, on March 27, 2015, he filed a letter stating that he had not received any
orders in response to his previously filed motions. (Doc. 45.)
On April 23, 2015, I granted Plaintiff’s motion for leave to file objections, directing him
to file objections on or before May 21, 2015. (Doc. 46.) However, Plaintiff failed to file any
objections. Consequently, on June 4, 2015, I again adopted Magistrate Judge Mehalchick’s
Report and Recommendation and dismissed Plaintiff’s complaint, granting him thirty (30)
days to file an amended complaint. (Doc. 47.) On June 15, 2015, Plaintiff filed a motion for
extension of time to file a motion for reconsideration (Doc. 48), which I granted (Doc. 50).
On July 23, 2015, Plaintiff filed a motion for reconsideration of my June 4, 2015 Order
adopting Magistrate Judge Mehalchick’s Report and Recommendation and dismissing his
complaint for failure to state a claim. (Doc. 51.) On August 6, 2015, Defendants filed a brief
in opposition (Doc. 55) and on September 11, 2015, Plaintiff filed his reply (Doc. 58).
Plaintiff’s motion for reconsideration is now fully briefed and ripe for disposition.
The purpose of a motion for reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909
(3d Cir. 1985) (citation omitted). A judgment may be altered or amended if the party seeking
reconsideration establishes at least one (1) of the following: “(1) an intervening change in
the 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 ex rel. Lou–Ann, Inc., v.
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Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citation omitted). A motion for reconsideration
should not be used as a means to re-argue matters already argued and disposed of or as
an attempt to re-litigate a point of disagreement between the Court and the litigant. Ogden
v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002). Reconsideration
motions are not to be used to raise new arguments or present evidence that could have
been raised prior to the entry of judgment. Hill v. Tammac Corp., No. 1:05–CV-1148, 2006
WL 529044, at *2 (M.D. Pa. Mar. 3, 2006). Lastly, reconsideration is an extraordinary
remedy and should therefore be granted sparingly. D'Angio v. Borough of Nescopeck, 56
F. Supp. 2d 502, 504 (M.D. Pa. 1999).
Plaintiff’s request for reconsideration will be denied. Here, Plaintiff has failed to
establish any reasonable basis for reconsideration. He does not set forth any factual or legal
basis supporting an argument that the Order was erroneous or failed to properly apprehend
the underlying facts stated in his complaint. Instead, he asserts that dismissal is manifestly
unjust because he did not receive a copy of the April 23, 2015 Order granting him a second
extension to file objections to the Report and Recommendation. However, this does not
establish a manifest injustice because even assuming he did not receive the Order, his
motion for reconsideration sets forth no reason why his complaint should not have been
dismissed for failure to state a claim. Therefore, because Plaintiff has set forth no basis for
denying the motion to dismiss and having repeatedly failed to file an amended complaint,
Plaintiff’s motion for reconsideration will be denied.

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NOW, this 5th day of January, 2016, IT IS HEREBY ORDERED as follows:
(1) Plaintiff’s motion for reconsideration (Doc. 51) is DENIED.
(2) Plaintiff’s motion to appoint counsel and for a temporary restraining order (Doc.
59) is DENIED.
(3) Plaintiff’s complaint will be DISMISSED with prejudice.
(4) The Clerk of Court is directed to mark the case as CLOSED.

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

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