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
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
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
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
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,
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);
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
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
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
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
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
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).