Bush v. Lackawanna County Prison et al

Filing 40

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 8/29/2016. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

GREGORY BUSH,
Plaintiff,
v.
LACKAWANNA COUNTY PRISON,
et al.,
Defendants.

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CIVIL NO. 3:CV-14-1253
(Judge Kosik)

MEMORANDUM
I.

Background
Plaintiff Gregory Bush filed this civil rights action pursuant to 42 U.S.C.

§ 1983. The matter proceeds on an amended complaint (Doc. 21) and the exhibits
thereto (Doc. 22). The only defendants named in the amended complaint are the
following Lackawanna County Prison employees: Warden Robert McMillan; Leonard
Bogart and Benjamin O’Leary. In the amended complaint, Plaintiff alleges that
Defendants violated his First Amendment right and his right under the Religious
Freedom Restoration Act (“RFRA”) to practice his Nation of Islam religion while
confined at the Lackawanna County Prison. O’Leary was dismissed from this action
on October 14, 2015. (Doc. 31.) On October 16, 2015, the Clerk’s Office was
directed to serve the amended complaint on the remaining two (2) Defendants. (Doc.
33.) Despite the waiver forms being sent to McMillan and Bogart, they have neither

waived service nor given any indication that they have accepted service of the
complaint. As such, an order was issued on August 25, 2016, directing the United
States Marshal to effect service on the remaining two (2) defendants in light of the
circumstances. (Doc. 39.)
Presently pending is Plaintiff’s motion seeking reconsideration of an order
issued by the court on January 20, 2015 (Doc. 19), that denied Plaintiff’s request for
the appointment of counsel, granted his motion for leave to proceed in forma pauperis
in this matter without full prepayment of the fees and costs, and directed him to file
an amended complaint. (Doc. 38.) The motion was filed on April 27, 2016, over one
(1) year and three (3) months following the issuance of the order being challenged. In
the motion for reconsideration, Plaintiff mainly wants the court to reconsider its
decision denying him counsel. He claims that counsel is needed because he has
limited knowledge of the law and because all of the defendants named in the original
complaint were terminated with the exception of the three defendants named in the
amended complaint filed by Plaintiff on March 2, 2015 (McMillan, O’Leary and
Bogart). Plaintiff also expresses his confusion as to why O‘Leary responded to the
amended complaint, but McMillan and Bogart did not when they are all employed by
the Lackawanna County Prison.

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II.

Standard of Review
The purpose of a motion for reconsideration “is to correct manifest errors of

law or fact or to present newly discovered evidence.” Kabacinski v. Bostrom Seating,
Inc., 98 F. App’x 78, 81 (3d Cir. 2004)(quoting Harsco Corp. v. Zlotnicki, 779 F.2d
906, 909 (3d Cir. 1985)). Because “federal courts have a strong interest in the finality
of judgments,” United States v. Hoey, No. 09-200, 2011 WL 748152, at *2 (W.D. Pa.
Feb. 15, 2011)(citation omitted), The standard that must be met to prevail on a motion
for reconsideration is high, see Berry v. Jacobs IMC, LLC, 99 F. App’x 405, 410 (3d
Cir. 2004).
The court may grant a motion for reconsideration if the moving party shows:
(1) an intervening change in the controlling law; (2) the availability of new evidence
which was not available when the court issued its order; or (3) the need to correct a
clear error of law or fact or to prevent a manifest injustice. United States v. Banks,
Crim. No. 03-245, 2008 WL 5429620, at *1 (W.D. Pa. Dec. 31, 2008)(citing Max’s
Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
Motions for reconsideration are not a tool to re-litigate and reargue issues which have
already been considered and disposed of by the court, see Hoey, 2011 WL 748152, at
*2 (citation omitted), or for addressing arguments that a party should have raised
earlier, see United States v. Dupree, 617 F.3d 724, 732-33 (3d Cir. 2010)(quotations
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omitted). Rather, such a motion is appropriate only where the court misunderstood a
party or where there has been a significant change in law or facts since the court
originally ruled on that issue. Hoey, 2011 WL 748152, at *2. The mere
dissatisfaction with the court’s ruling is not a proper basis for reconsideration.
Progressive Cas. Ins. Co. v. PNC Bank, N.A., 73 F.Supp.2d 485, 487 (E.D. Pa. 1999).

III.

Discussion
None of the reasons justifying reconsideration exist in the present case. There

has not been an intervening change in the controlling law, no new evidence exists and
there has been no error of law or fact. As such, reconsideration is not even warranted.
However, for the reasons previously set forth in the Memorandum and Order issued
on January 20, 2015, the appointment of counsel was properly denied. Further, any
such denial was without prejudice to Plaintiff, should the circumstances change
during these proceedings. Moreover, an order was just issued directing the U.S.
Marshal to serve the two (2) Defendants who have not accepted service in this case.
To the extent reconsideration is sought by Plaintiff because he intended to name more
than three (3) defendants, the amended complaint he submitted is very clear that he
only sought to bring his claims against Defendants O’Leary, Bogart and McMillan.
(Doc. 21; see also Doc. 24.) Although Plaintiff maintains that all three (3)
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Defendants are employed at the Lackawanna County Prison, this does not necessarily
mean that all three would waive service and respond to the complaint together.
O’Leary waived service and filed a motion to dismiss the complaint against him.
Plaintiff thereafter sought to withdraw O’Leary as a defendant. Based on the
foregoing, O’Leary is no longer in the case. The only remaining defendants are
Bogart and McMillan. While Plaintiff may think the other defendants named in the
original complaint are still somehow involved in this action, he is mistaken. The
standing complaint is Document 21 and the supporting exhibits (Doc. 22), and only
now proceeds against McMillan and Bogart. An appropriate Order follows.

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