ELIZABETH A. WOLFORD, District Judge.
Pro se Plaintiff John Willis Richard ("Plaintiff") brought this action against defendants Brian Fischer, Anthony Annucci, John Nuttall, Karen Bellamy, Christopher Lindquist, Albert Prack, Thomas Poole, Sheryl Zenzen, Gerard Guiney, Norman Parrish, Andrew Giannino, Jennifer Dignean, and Thomas Tanea (collectively "Defendants") pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, alleging discrimination based on his race and religion, and retaliation. (Dkt. 1). On August 7, 2014, the Court issued a Decision and Order dismissing all of Plaintiff's claims, except for his equal protection and first amendment retaliation claims against defendants Dignean and Tanea (the "August 7th Decision and Order"). (Dkt. 22). Presently before the Court is Plaintiff's motion for reconsideration of the August 7th Decision and Order. (Dkt. 28). For the following reasons, Plaintiff's motion for reconsideration is denied.
The Federal Rules of Civil Procedure do not recognize a motion for "reconsideration." See Lopez v. Goodman, No. 10-CV-6413 CJS, 2013 WL 5309747, at *1, 2013 U.S. Dist. LEXIS 135046, at *1 (W.D.N.Y. Sept. 20, 2013) (citing Hamilton v. Williams, 147 F.3d 367, 371 n. 10 (5th Cir.1998)). "Since the Federal Rules of
As noted by the Second Circuit Court of Appeals, "[t]he standard for granting a [motion for reconsideration] 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). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992) (quotations omitted). "With respect to the third of these criteria, to justify review of a decision, the Court must have `a clear conviction of error on a point of law that is certain to recur.'" Turner v. Vill. of Lakewood, No. 11-CV-211-A, 2013 WL 5437370, at *3, 2013 U.S. Dist. LEXIS 139674, at *9 (W.D.N.Y. Sept. 27, 2013) (quoting United States v. Adegbite, 877 F.2d 174, 178 (2d Cir.1989)). "`These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court.'" Boyde v. Osborne, No. 10-CV-6651, 2013 WL 6662862, at *1, 2013 U.S. Dist. LEXIS 177084, at *2-3 (W.D.N.Y. Dec. 16, 2013) (quoting Griffin Indus., Inc. v. Petrojam, Ltd., 72 F.Supp.2d 365, 368 (S.D.N.Y.1999)).
Plaintiff's motion for reconsideration is over 90 pages long, including a 48-page affidavit and a 49-page memorandum of law. (Dkt. 28 & 28-1). Pursuant to this Court's Local Rules of Civil Procedure, memoranda of law in support of or in opposition to any motion may not exceed 25 pages in length, unless a party obtains permission to file an oversized submission. See L.R. Civ. P. 7(a)(2)(C). Although the Court could strike Plaintiff's motion on this ground alone, see Liberati v. Gravelle, No. 9:12-CV-00795 (MAD/DEP), 2013 U.S. Dist. LEXIS 137826, at *8 (N.D.N.Y. Aug. 9, 2013) (deference owed to pro se litigants "does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules"), adopted, 2013 U.S. Dist. LEXIS 82655 (N.D.N.Y. May 8, 2015), it will nevertheless consider Plaintiff's arguments.
Plaintiff brings his motion pursuant to Fed.R.Civ.P. 59(e) or, if his motion is not timely, pursuant to Fed.R.Civ.P. 60(b). (Dkt. 28 at 7-8).
The Local Rules of Civil Procedure for the Western District of New York state that motions for reconsideration are treated as "falling within the scope of Fed. R.Civ.P. 59(e)," and thus "must be filed and served no later than twenty-eight (28) days after the entry of the challenged judgment, order, or decree and, pursuant to Fed.R.Civ.P. 6(b)(2), no extension of time will be granted." L.R. Civ. P. 7(d)(3); see also Fed.R.Civ.P. 59(e) ("A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the
If a Rule 59 motion is not timely filed, the motion may be treated as a Rule 60(b) motion. United States v. Clark, 984 F.2d 31, 32 (2d Cir.1993). A motion pursuant to Rule 60(b) must be brought "within a reasonable time" of the final judgment. See Fed.R.Civ.P. 60(c)(1). A four-month delay can be considered unreasonable. See Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y.2004) ("treating the motion as one for reconsideration, the Court concludes that the request, made over three and one-half months after the ... order, is far too late."); Gould Entm't Corp. v. Bodo, 107 F.R.D. 308, 311 (S.D.N.Y.1985) (five-month delay is unreasonable). As a result, it would be well within the Court's discretion to reject Plaintiff's motion as untimely. Nonetheless, the Court will not do so, and instead it will consider the merits of Plaintiff's motion.
Plaintiff's motion for reconsideration lacks merit. Plaintiff has failed to raise an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice. Plaintiff argues that there is no Second Circuit Court of Appeals precedent supporting the Court's decision to dismiss his conspiracy claims. (Dkt. 28 at 14). Plaintiff also argues that the Court should have given him the opportunity to amend his complaint to adequately state a claim with regard to his conspiracy and first amendment claims, and that he should be permitted to engage in discovery to substantiate his claims. (Id. at 2-3).
As to Plaintiff's contention relating to the intracorporate conspiracy doctrine, the Court is cognizant, as it was at the time it issued the August 7th Decision and Order, that the Second Circuit Court of Appeals has not issued a decision specifically addressing the use of the intracorporate conspiracy doctrine in prisoner civil rights cases.
The Court finds the reasoning of these courts persuasive. Plaintiff's argument relating to the application of the intracorporate conspiracy doctrine, or dismissal of his conspiracy claims, does not raise an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice. Accordingly, his motion for reconsideration on this ground is denied.
Plaintiff also argues that the Court should have afforded him the opportunity to amend his complaint and engage in discovery to substantiate his claims. Although Plaintiff's entitlement to discovery and whether he should be permitted to amend his complaint were not briefed by the parties on the motion to dismiss, see Redd v. N.Y.S. Div. of Parole, 923 F.Supp.2d 393, 396 (E.D.N.Y.2013) (motions for reconsideration are not meant to give a party a "second bite at the apple," and should not advance new arguments or issues that could have been advanced in the original motion), the Court will address them.
While leave to amend a complaint should be freely given "when justice so requires," Fed.R.Civ.P. 15(a)(2), it is "within the sound discretion of the district court to grant or deny leave to amend," McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). The Court is cognizant that it should generally grant pro se plaintiff's leave to amend "at least
Plaintiff was previously granted permission to amend his complaint to alter the caption in March 2011 (Dkt. 10 & 11); accordingly, Plaintiff had the opportunity at that time to further elaborate on his claims. The Court disagrees that Plaintiff should have been afforded another opportunity to amend his complaint almost four years after the original complaint was filed. See Barboza v. Riverbay Corp., No. 15-CV-3128 (JMF), 2015 U.S. Dist. LEXIS 95383, at *4-5 (S.D.N.Y. July 22, 2015) (denying the plaintiff leave to amend his complaint when he was already afforded previous opportunities to do so).
More importantly, as indicated by the August 7th Decision and Order, Plaintiff could not amend his complaint to state a valid claim to relief, and the complaint does not give any indication that a valid claim can be stated. See McCree v. Messina, No. 14-CV5201 (JPO), 2015 WL 4299546, at *6, 2015 U.S. Dist. LEXIS 92040, at *14 (S.D.N.Y. July 15, 2015) (denying leave to amend "because the alleged facts do not rise to the level of [a constitutional] violation," and concluding that "[the plaintiff] could not amend his complaint to state a valid claim to relief"); see also Ashmore v. Prus, 510 Fed.Appx. 47, 49 (2d Cir.2013) (leave to amend is futile where barriers to relief cannot be surmounted by reframing the complaint), cert. denied, ___ U.S. ___, 133 S.Ct. 2038, 185 L.Ed.2d 887 (2013); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (denying leave to amend a pro se complaint where amendment would be futile). Indeed, in deciding the motion to dismiss, the Court construed the complaint liberally where a valid claim could be stated. (See Dkt. 22 at 20 ("Construing Plaintiff's allegations in the light most favorable to him, particularly with regard to Plaintiff's pro se status, the Court finds that Plaintiff has sufficiently alleged that he was treated differently than similarly-situated individuals."); id. at 25 ("Although pled unartfully, Plaintiff has alleged a nexus between his protected activity and the alleged adverse action to state a claim for retaliation.")).
Although Plaintiff states in his response to the motion to dismiss that he is in need of discovery to substantiate his claims (Dkt. 18 at 21), a request for discovery does not cure an otherwise inadequate pleading. Ashcroft v. Igbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."); S. Cherry St., LLC v. Hennessee Grp., LLC, 573 F.3d 98, 113-14 (2d Cir.2009) (noting that plaintiff's speculation that discovery would reveal facts to support claims "underscores, rather than cures, the deficiency in the Complaint."); Johnson, v. Cnty. of Nassau, 411 F.Supp.2d 171, 176 (E.D.N.Y. 2006) (finding that plaintiff's request that the court deny motion to dismiss "until he has had an opportunity to conduct further discovery ... puts the cart before the horse and ignores the fact that discovery has to be tied to a pleading which passes muster under Rule 12(b)(6).").
Plaintiff has failed to raise any change of law or new evidence in support of reconsideration. Plaintiff's motion is inadequate to justify reconsideration and is therefore denied.
Plaintiff also requests that he be permitted to submit his conspiracy claim to the Second Circuit Court of Appeals
Pursuant to 28 U.S.C. § 1292(b), a district court may certify an order for interlocutory appeal where "such order involves a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal from the order may materially advance the ultimate termination of the litigation...." 28 U.S.C. § 1292(b). The standard for granting an interlocutory appeal is strict. "[L]eave to appeal from interlocutory orders should be granted only in exceptional circumstances [that]... overcome the general aversion to piecemeal litigation and justify departing from the basic policy of postponing appellate review until after the entry of a final judgment." Picard v. Estate of Madoff, 464 B.R. 578, 582-83 (S.D.N.Y.2011) (citation and quotation omitted). "Interlocutory appeals are strongly disfavored in federal practice. Movants cannot invoke the appellate process as a vehicle to provide early review of difficult rulings in hard cases. Only exceptional circumstances will justify a departure from the basic policy of avoiding appellate review until a final decision on the merits." Glatt v. Fox Searchlight Pictures Inc., No. 11 Civ. 6784(WHP), 2013 WL 5405696, at *1, 2013 U.S. Dist. LEXIS 139594, at *3 (S.D.N.Y. Sept. 17, 2013) (internal quotations and citations omitted).
Plaintiff has failed to demonstrate the "exceptional circumstances" warranting interlocutory appellate review based on application of the intracorporate conspiracy doctrine. The intercorporate conspiracy doctrine has been applied by this district and others within the Second Circuit Court of Appeals for more than ten years, and those decisions have not been reconsidered or overturned. Plaintiff may appeal this issue to the Second Circuit Court of Appeals at the conclusion of the case.
Further, the August 7th Decision and Order addressed Plaintiff's complaint relating to New York Correction Law § 138, which requires prison officials to post rules relating to inmate misconduct. (Dkt. 22 at 31). As an initial matter, it does not appear that a violation of Correction Law § 138 states a constitutional violation, see Gill v. Hoadley, 261 F.Supp.2d 113, 131 n. 12 (N.D.N.Y.2003); see also Mingo v. Fischer, No. 9:14-CV-0235 (MAD/TWD), 2014 WL 2918599, at *6-7, 2014 U.S. Dist. LEXIS 87231, at *17-18 (N.D.N.Y. June 26, 2014), and there does not appear to be conflicting authority among district courts within the Second Circuit Court of Appeals relating to application of this section.
Further, Correction Law § 138 does not apply here, where Plaintiff is challenging prison employment policies. In the August 7th Decision and Order, the Court found that Plaintiff stated an equal protection claim with regard to the prison employment policy as being unfairly enforced against him due to his race and religion. (Dkt. 22 at 20). In other words, although Plaintiff is unable to state a claim for enforcement of the policy against him pursuant to Correction Law § 138, he may proceed under an equal protection theory to recover for any alleged injury caused by enforcement of this policy. Because Plaintiff has not raised any exceptional circumstance regarding this issue pertaining to Correction Law § 138, his request for certification on this basis is denied.
The Court has considered Plaintiff's remaining arguments and finds them to be
SO ORDERED.
