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United States District Court, S.D. New York

March 9, 2004.

DIANE WORD, Plaintiff(s) -v- ALAN CROCE, Chairman-Commissioner, New York State Commission of Correction, GLENN S. GOORD, Commissioner, New York State Department of Correctional Services, Defendant(s)

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge Page 2

Plaintiff Diane Word seeks reconsideration of this Court's November 8, 2002, decision in Word v. Croce, 230 F. Supp.2d 504 (S.D.N.Y. 2002) ("Word IV"). pursuant to Local Civil Rule 6.3 and Federal Rule of Civil Procedure 59(e).*fn1 Plaintiff properly filed her motion within the ten day time frame required by Rule 59(e) and Local Civil Rule 6.3. See Fed.R.Civ.Pro. 59(e); S.D.N.Y. Local Civil Rule 6.3. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

For the reasons set forth below, the Court denies Plaintiff's motion for reconsideration.


  In March 1996, Plaintiff was incarcerated at the Bedford Hills Correctional Facility. Word v. Croce, 169 F. Supp.2d 219, 222 (2001) ("Word II"). In July 1996, she was transferred to Albion Correctional Facility. Id. At the Bedford Hills facility and on a bus from Rikers Island to Bedford Hills, Plaintiff was exposed to Tuberculosis ("TB"). Id. Upon admission to Bedford Hills and Albion, Plaintiff refused to undergo all medical tests, including a test to detect latent TB, called a purified protein derivative ("PPD") test. Id. All inmates are required to take PPD tests and if they refuse, inmates are placed on "TB Hold." Id. at 222-23. Although chest x-rays do not detect latent TB, inmates can be released from TB Hold if they have three negative chest x-rays within one year. Id. at 223. Plaintiff has refused PPD testing and chest x-rays. Id. As a Page 3 result, Plaintiff remains in TB Hold, under which she is kept in a locked cell for twenty-three hours a day, given one hour per day for exercise, and three showers per week, and the only visits she is allowed are legal visits. Id.


  On April 27, 1997, Plaintiff commenced her first action relating to these events. Word v. Wright, slip op. 98 Cv 220A (H) (W.D.N.Y. Sept. 15, 1999) ("Word I")). After that action was dismissed, Plaintiff filed a petition for a writ of habeas corpus in state court, which was also denied. Word IV. 230 F. Supp.2d at 507. Plaintiff then brought an action seeking a preliminary injunction. Id. After that motion was denied, Plaintiff's motion for reconsideration was also denied. Id. Plaintiff then filed another action seeking injunctive relief, which this Court dismissed in Word IV. Id. Plaintiff's claims are summarized in Word IV familiarity with which is assumed. See id, 230 F. Supp.2d at 507-08.


  In the instant motion, Plaintiff asserts that reconsideration of Word IV is warranted because the Court: (1) failed to address her August 5, 2002 motion for summary judgment; (2) overlooked Reynolds v. Goord, 103 F. Supp.2d 316, 335-41 (S.D.N.Y. 2000); (3) failed to determine whether Plaintiff had a clear and substantial likelihood of success in showing that her detention in TB Hold for more than a year is not rationally related to a legitimate penological interest (Plaintiff cites Reynolds v. Goord in this connection); (4) failed to determine whether the TB Hold limit of one year or more is rationally related to a legitimate penological interest (again Page 4 citing Reynolds v. Goord); (5) failed to resolve the question of whether defendants had a duty to proffer affidavits concerning whether their dietary services policies serve legitimate governmental objectives; (6) failed to resolve the question of whether defendants had a duty to proffer affidavits concerning whether their medical and dental policies serve legitimate and neutral governmental objectives "pertaining to religious exemptions"; and (7) failed to resolve the issue of whether Defendants' policy regarding Plaintiff's incoming mail, legal and non-legal, would "serve legitimate and neutral governmental interest if the Plaintiff were present when" the mail was opened (emphasis in original). Plaintiff further asserts that reconsideration is warranted because of "newly discovered evidence" that Plaintiff was arbitrarily denied a legal visit on November 14, 2002, and that Defendants know that Plaintiff has received information about Defendant's policies concerning Involuntary Protective Custody, a custodial program that Plaintiff contends is less restrictive than TB Hold and in which she argues she could be monitored appropriately for TB symptoms.

  Applications to alter or amend judgments under Federal Rule of Civil Procedure 59(e) or for reconsideration under S.D.N.Y. Local Rule 6.3 are evaluated under the same standard. Williams v. N.Y. City Dep't of Corr., 219 F.R.D. 78, 83 (S.D.N.Y. 2003) (citing Graham v. Sullivan, No. 86 Civ. 163, 2002 WL 31175181, at *2 n. 2, (S.D.N.Y. Sept. 23, 2003), Tran v. Tran, 166 F. Supp.2d 793, 797 (S.D.N.Y. 2001), Word v. Croce, No. 00 Civ. 6496, 2001 WL 755394, at *2 (S.D.N.Y. July 5, 2001) ("Word III")). These rules provide the "court[s] with an opportunity to correct manifest errors of law or fact, hear newly discovered evidence, consider a change in the applicable law or prevent manifest injustice." U.S. Titan. Inc. v. Guangzhou Zhen Hua Shipping Co. Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (citations omitted). However, Page 5 neither rule is an appropriate vehicle for presenting "new facts, issues or arguments not previously presented to the court." Id. (quoting Wechsler v. Hunt Health Systems. Ltd.. 186 F. Supp.2d 402, 410 (S.D.N.Y. 2002); Graham, 2002 WL 31175181, at * 2; Word III, 2001 WL 755394, at *3-4); Parrish v. Sollecito, 253 F. Supp.2d 713, 715 (S.D.N.Y. 2003) (noting that a Rule 59(e) motion is not an avenue to "advance new theories that the movant failed to advance in connection with the underlying motion, nor to secure a rehearing on the merits with regard to issues already decided").

  On a motion for reconsideration, "the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision." Parrish, 253 F. Supp.2d at 715 (citing Lichtenberg v. Besicorp. Group Inc., 28 Fed. Appx. 73 (2d Cir. 2002)); SEC v. Ashbury Capital Partners. L.P., No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001); Williams. 219 F.R.D. at 83. Alternatively, "reconsideration maybe granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence." Parrish. 253 F. Supp.2d at 715 (citing Virgin Atlantic Airways. Ltd, v. Nat'l Mediation Bd., 965 F.2d 1245, 1255 (2d Cir. 1992)); Williams, 219 F.R.D. at 83. Under this standard, the "rule `should be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court.'" Williams, 219 F.R.D. at 83 (quoting Mopex. Inc. v. Am. Stock Exchange. LLC., No. 02 Civ. 1656(SAS), 2002 WL 523417, at *1 (S.D.N.Y. Apr. 5, 2002)); Wechsler, 186 F. Supp.2d at 410; Ouerim v. Equal Employment Opportunity Comm'n., No. 97 Civ. 4031(RPP), 2000 WL 502868, at *1 (S.D.N.Y. Apr. 27, 2000); Griffin Indus. Inc. v. Petrojam. Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y. 1999); Page 6 Herschaft v. New York City Campaign Fin. Bd., 139 F. Supp.2d 282, 284 (E.D.N.Y. 2001)). None of the arguments raised in Plaintiff's motion merits reconsideration of Word IV under these standards. As explained below, each of Plaintiff's grounds reiterates arguments previously made and considered, misreads the import of this Court's Word IV decision, or raises issues outside the scope of the case.

 Summary Judgment Motion

  The Court did not overlook Plaintiff's summary judgment motion. Indeed, its decision to grant Defendants' motion to dismiss necessarily rejected Plaintiff's contention that she was entitled to judgment in her favor. To the extent that this outcome was unclear in the November 8, 2002, decision, the Court hereby denies Plaintiff's summary judgment motion for the reasons set forth in Word IV.

 Reynolds v. Goord

  Plaintiff's assertion that the Court overlooked Reynolds v. Goord, 103 F. Supp.2d 316, 335-41 (S.D.N.Y. 2000)., is baseless. The Court specifically rejected her Reynolds arguments in Word IV. See 230 F. Supp.2d at 512.

 Arguments Concerning Length of TB Hold

  Here Plaintiff again seeks to revive arguments that have already been considered by this and prior courts. They were not overlooked. Word IV specifically addresses in some detail the relevant governmental interests, Plaintiff's constitutional claims, and the impact of Plaintiff's Page 7 prior litigation on the viability of her claims.

 Submission of Affidavits

  As discussed in Word IV. courts in this circuit have repeatedly recognized the legitimacy of the governmental interests implicated by the policies at issue here, and Plaintiff proffered no facts that dispute the legitimacy of those interests. Having considered the nature of the interests at stake, Plaintiff's factual allegations and legal claims, and the impact of her prior litigation efforts, the Court stayed discovery pending resolution of the motion to dismiss and determined that the record was sufficiently developed for resolution of the case on the merits. The Court did not overlook the question of governmental interest nor err in failing to require affidavits on this issue. Thus, no reconsideration of Word IV is warranted on this ground.

 Opening of Plaintiff's Mail

  Plaintiff asserts that the Court failed to determine whether the opening and inspection of Plaintiff's mail, including legal mail, in her presence serves legitimate and neutral governmental interests. Motion ¶ 2(g). Plaintiff's complaint in this action, however, did not raise any allegations or issues with respect to the opening of mail in her presence. Rather, she complained that mail was being opened and inspected outside of her presence. See Word IV. 230 F. Supp. at 507, 514; Complaint at ¶ 3. A motion for reconsideration is not, as noted above, a proper vehicle for presenting "new facts, issues or arguments not previously presented to the court." U.S. Titan. Inc. v. Guangzhou Zhen Hua Shipping Co. Ltd., 182 F.R.D. at 100. "A motion for reconsideration may not be used to plug gaps in an original argument . . . or to argue in the Page 8 alternative once a decision has been made." Horsehead Res. Dev. Co. Inc. v. B.U.S. Envtl Serv. Inc., 928 F. Supp. 287, 289 (S.D.N.Y. 1996) (citations omitted).

 "Newly Discovered Evidence"

  First, Plaintiff asserts newly discovered evidence that on November 14, 2002, Defendants interfered with her right to effective assistance of counsel by virtue of their agent cancelling Plaintiff's legal appointment. Motion ¶ 2(h). Although a Plaintiff can offer newly discovered evidence under a Rule 59(e) motion, a movant cannot do so in order to present "new facts, issues or arguments not previously presented to the court." U.S. Titan. Inc. v. Guangzhou Zhen Hua Shipping Co. Ltd., 182 F.R.D. at 100. In Word IV. Plaintiff made no claims regarding interference with her right to counsel. See Word IV. 230 F. Supp.2d at 507-08. The alleged denial of the legal visit took place after the November 8, 2002, dismissal of her case. Such claims have no bearing on the present case, and thus are not the proper subject of a motion for reconsideration.

  If Plaintiff wishes to pursue a new claim in this regard, she is free to contact the Pro Se Office of this Court for information on commencing a case. She should, however, bear in mind the requirement imposed by the Prison Litigation Reform Act that all available administrative remedies be exhausted prior to the commencement of civil litigation relating to prison conditions. See 42 U.S.C. § 1997e.

  Second, Plaintiff asserts that she has newly discovered evidence that Defendants are aware of her knowledge of the existence of an alternative program she could be placed into which imposes less stringent restrictions on Plaintiff, but would still keep her out of the general Page 9 prison population. Motion ¶ 2(i). The Court construes this argument as, in essence, an argument that Defendants should place her in this less restrictive environment rather than keep her in TB Hold. Indeed, Plaintiff contends that this program will adequately monitor Plaintiff's health in regards to having active TB, but that Defendants do not place her in this program because she is a "religious refuser" of PPD tests, x-rays, allergens and an animal based diet. Motion ¶ 2(i). Plaintiff therefore asserts that the evidence supports her original allegation claiming violations of her First, Eighth and Fourteenth Amendment rights. See Complaint ¶ 4.

  "A Rule 59(e) motion can only be granted if the movant presents newly discovered evidence that was not available at the time of the trial." Cray v. Nationwide Mutual Ins. Co., 192 F. Supp.2d 37, 39 (W.D.N.Y., 2001). "The evidence must be `newly discovered or . . . could not have been found by due diligence.'" Id. (quoting United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (citation omitted)); Atlantic States Legal Found, v. Karg Bros., 841 F. Supp. 51, 56 (N.D.N.Y. 1993)).

  Plaintiff proffers no evidence to indicate that the information she uncovered about this program was not available previously or that it could not have been found by due diligence. Furthermore, the Court should only grant a motion for reconsideration if it "has overlooked matters or controlling decisions which might have materially influenced the earlier decision." Morales v. Ouinfiles Transnational Corp.. 25 F. Supp.2d 369, 372 (S.D.N.Y. 1998) (citing Enzo Biochem. Inc. v. Johnson & Johnson, 866 F. Supp. 122, 123 (S.D.N.Y. 1994) (citations omitted); Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990)). The Court finds that this evidence would not have materially influenced the decision in Word IV. In Word IV. Plaintiff's claims concerning the TB Hold, medical and dental treatment, and diet were dismissed pursuant Page 10 to the doctrine of res judicata. Word IV. 230 F. Supp.2d at 511. Additional evidence going to the merits of her claim would not have materially affected the Court's decision. Thus, evidence regarding the IPC policy or Plaintiff's awareness of it does not warrant the granting of Plaintiff's motion.


  For the forgoing reasons, Plaintiff's motion for reconsideration under Fed.R.Civ.P. 59(e) and S.D.N.Y. Local Rule 6.3 is denied. Plaintiff's August 5, 2002, motion for summary judgment is also denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444, 8 L.Ed.2d 21 (1962).


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