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WORD v. CROCE

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.

  BACKGROUND

  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.

  PRIOR LITIGATION

  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.

  DISCUSSION

  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 ...


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