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DIMARCO v. ROME HOSP.

October 1, 1995

ANTONINO T. DiMARCO, M.D., Plaintiff, against ROME HOSPITAL AND MURPHY MEMORIAL HOSPITAL; THE BOARD OF MANAGERS OF ROME HOSPITAL AND MURPHY MEMORIAL HOSPITAL; KIRK B. HINMAN; HENRY A. SPARKS, M.D., Medical Director of Rome Hospital and Murphy Memorial Hospital; JOHN A. GORMAN, Chief Executive Officer of Rome Hospital and Murphy Memorial Hospital; HCA MANAGEMENT COMPANY, INC.; CHARLES M. BROWN, M.D.; JAMES D. DUNDA, M.D.; NEVILLE W. HARPER, M.D.; LAWRENCE BURGREEN, M.D.; and HERB SKOGLAND, M.D., Defendants.


The opinion of the court was delivered by: MCAVOY

 & ORDER

 I. BACKGROUND

 A. Facts Of The Case

 The facts of this case are well-known to the Court and all parties to this case. Therefore, the Court will not recite the facts herein.

 B. Procedural History

 In brief, plaintiff's first cause of action alleging due process violations was dismissed by a decision of this Court in June, 1991. The second cause of action for First Amendment violations remained intact as did the third cause of action for punitive damages and fourth cause of action for attorneys' fees under § 1988. In a "supplement to pleading" filed on March 16, 1992, months after the first summary judgment motion was decided, plaintiff added a fifth cause of action claiming that he was deprived of his right of access to the court, subsumed under the First Amendment right to petition the government for redress of grievances.

 The defendants then moved for summary judgment again in June, 1995. By an Order of the Court dated July 6, 1995, the Court granted summary judgment to defendants Gorman and HCA finding that they were solely private actors who could not, upon the evidence presented, be found to have conspired or acted jointly with state actors to violate plaintiff's First Amendment rights. Summary judgment was also granted in favor of defendant Hinman for plaintiff's failure to respond to the summary judgment argument made in his favor. The Court denied summary judgment on all other issues presented as to all other defendants.

 The defendants now move for reconsideration of the July 6, 1995 Order. The parties have engaged in extensive discovery and motion practice, and the case is set for trial in early 1996.

 II. DISCUSSION

 A. Standard For Reconsideration

 "A court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice." Hester Industries, Inc. v. Tyson Foods, Inc., 160 F.R.D. 15, 16 (N.D.N.Y. 1995) (citing, Larsen v. Ortega, 816 F. Supp. 97, 114 (D.Conn. 1992), aff'd, 990 F.2d 623 (1993)); Nossek v. Brd. of Educ. of the Duanesburgh Central School Dist., 1994 U.S. Dist. LEXIS 17686, 1994 WL 688298 (N.D.N.Y. 1994). Since the defendants neither have pointed to a change in the controlling law, nor have presented new evidence not previously available, their motion to reconsider apparently seeks to remedy a clear legal error, or to prevent an obvious injustice. The Court cautions at the outset that, although "clear error" and "preventing injustice" are valid grounds for reconsideration, the parties seeking reconsideration must not use this vehicle as a means to relitigate issues previously decided by the Court, or to attempt to "sway the judge" one last time. See Saratoga Harness Racing, Inc. v. Veneglia, 897 F. Supp. 38, 1995 U.S. Dist. LEXIS 11064, *8, 1995 WL 461973 (N.D.N.Y. 1995) (citation omitted). With these standards in mind, the Court now turns to the issues raised.

 B. First Amendment Analysis

 The defendants argue that the Court failed to apply the correct legal standard as set forth in Waters v. Churchill, 128 L. Ed. 2d 686, 114 S. Ct. 1878 (1994), and Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995). In addition, the defendants contend that applying the correct standard would mandate a reversal of the Court's prior stance with respect to its denial of ...


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