McCain v. City of Burlington et al

Filing 90

OPINION AND ORDER denying 85 Motion for Reconsideration re 84 Opinion and Order. Signed by Judge William K. Sessions III on 11/9/2011. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Zack McCain,
Plaintiff,
v.
City of Burlington, Linda
Levitt, Brian LaBarge,
Jane or John Doe, Mary
Morrissey, Jesse Stewart,
Whitney Taylor, Darryl
Graham, Robert Hofmann,
James Muller, Michael J.
Straub, Chittenden County,
Lauren R. Pezzullo,
Jennifer Morrison,
Margaret Delano, Kevin
Wilson,
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

File No. 2:09-CV-247

OPINION AND ORDER
(Doc. 85)
Plaintiff Zack McCain, proceeding pro se, moves for
reconsideration of the Court’s Opinion and Order, dated
August 18, 2011, granting Defendant Darryl Graham’s motion
to dismiss.

For the reasons set forth below, the motion for

reconsideration is DENIED.
Background
The Court assumes the parties’ familiarity with the
factual background of this case, as set forth in McCain’s
83-page Complaint and summarized in the Court’s August 30,
2010 and August 18, 2011 Opinion and Orders.

Briefly

stated, the current motion pertains to McCain’s claim
against Darryl Graham, a shift supervisor at Chittenden
Regional Correctional Facility (“CRCF”).

The allegation is

that Graham assigned McCain to less preferable housing when
McCain refused to work in the prison kitchen.

McCain argues

that the reassignment violated his due process rights.

The

Court disagreed, and further concluded that Graham was
entitled to qualified immunity.
McCain now presents the Court with two pieces of
additional documentation.

The first is a prison grievance

form in which a Corrections Officer was instructed not to
reassign detainees to new units when they refused to work.
(Doc. 85-1.)

The second is a 1996 Order from this Court

acknowledging a settlement agreement between a class of
inmates and the State regarding prison conditions.
85-2.)

(Doc.

The settlement agreement apparently referenced

gymnasium housing at the Northwest Regional Correctional
Facility.

(Doc. 85-2 at 3.)

McCain argues in his motion

for reconsideration that these documents should have put
Defendant Graham on notice that his conduct was unlawful.
McCain also contends that the settlement agreement created a
liberty interest.

2

Discussion
It is well settled that “[t]he standard for granting a
motion to reconsider 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).
“‘Motions for reconsideration must be narrowly construed
and the standard strictly applied to discourage litigants
from making repetitive arguments on issues that have been
thoroughly considered by the court, to ensure finality,
and to prevent the practice of a losing party examining a
decision and then plugging the gaps of the lost motion
with additional matters.’”

Lewis v. Rosenfeld, 145 F.

Supp. 2d 341, 343 (S.D.N.Y. 2001) (quoting Ackoff-Ortega
v. Windswept Pac. Entm’t Co., 130 F. Supp. 2d 440, 443
(S.D.N.Y. 2000)).
McCain’s motion does not meet the standard for
reconsideration, as nothing in these newly-submitted
documents might reasonably be expected to alter the
Court’s decision.

Specifically, the additional

3

documentation does not impact the Court’s conclusion that
“the law was not sufficiently clear for Defendant Graham
to have reasonably understood that his alleged conduct was
unlawful.”

(Doc. 84 at 10.)

Even assuming that Graham

had knowledge of the 2008 grievance, a grievance
resolution does not necessarily reflect clearly
established law for purposes of qualified immunity.
Moreover, the 1996 settlement agreement does not appear to
pertain to the due process questions presented here.
Furthermore, McCain has not demonstrated to the Court
why these documents, each of which predated the filing of
the Complaint, were not submitted sooner.

McCain claims

that he discovered the 2008 grievance form “[w]hile
looking through my files.”

Courts have held, however,

that evidence which was “in the possession of the party
before the judgment was rendered . . . is not newly
discovered and does not entitle [the movant] to relief.”
Patel v. Lutheran Med. Ctr., Inc., 775 F. Supp. 592, 596
(E.D.N.Y. 1991) (citing, inter alia, United States v.
Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983).
With respect to the settlement agreement, McCain
allegedly made inquiries about the inmate class action

4

only after the Court issued its Opinion and Order.
89 at 1-2.)1

(Doc.

The settlement agreement was a matter of

public record, was apparently available through due
diligence, and thus may not be presented for the first
time in a motion for reconsideration.

See Stewart Park

Reserve Coalition Inc. v. Slater, 374 F. Supp. 2d 243, 254
(N.D.N.Y. 2005) (citing Oxford House, Inc. v. City of
Albany, 155 F.R.D. 409, 410 (N.D.N.Y. 1994)).

McCain is

therefore not entitled to relief.
Conclusion
For the reasons set forth above, McCain’s motion for
reconsideration (Doc. 85) is DENIED.
Dated at Burlington, in the District of Vermont, this
9th day of November, 2011.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

1

McCain appears to be confused about the date on
which he received the Court’s Opinion and Order. In his
reply memorandum, he states that he received the Opinion and
Order on September 11, 2011. (Doc. 89 at 1.) His motion
for reconsideration, however, was filed on September 6,
2011.
5