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McNEIL v. U.S.

United States District Court, N.D. New York


December 13, 2005.

DUNCAN J. McNEIL, III, Plaintiff,
v.
UNITED STATES and its Officers and Agencies; CLERK, U.S. District Court — NDNY; CLERK, U.S. Bankruptcy Court — NDNY; U.S. ATTORNEY, NDNY; OFFICE OF U.S. TRUSTEE — NDNY; U.S. MARSHAL SERVICE — NDNY; FBI — NDNY; IRS — NDNY; SECRET SERVICE — NDNY, and their officers, Defendants. DUNCAN J. McNEIL, III Plaintiff, v. UNITED STATES and its Officers and Agencies; CLERK, U.S. District Court — NDNY; CLERK, U.S. Bankruptcy Court — NDNY; U.S. ATTORNEY, NDNY; OFFICE OF U.S. TRUSTEE — NDNY; U.S. MARSHAL SERVICE — NDNY; FBI — NDNY; IRS — NDNY; SECRET SERVICE — NDNY, and their officers, Defendants.

The opinion of the court was delivered by: NORMAN MORDUE, District Judge

ORDER

By Decision and Order of this Court filed October 7, 2005, plaintiff's motion for reconsideration was denied and this action was dismissed due to plaintiff's failure to comply with the Court's direction that he (i) either pay the statutory filing fee for this action or file a renewed in forma pauperis application supported by a signed inmate authorization form and evidence regarding his prior litigation sufficient to establish that the dismissal of those prior actions should not be considered to be "strikes" within the meaning of 28 U.S.C. § 1915(g); and (ii) file an amended complaint which complies with the pleading requirements of the Federal Rules of Civil Procedure. Dkt. No. 7.

  Presently before the Court is a renewed and supplemental request for reconsideration from plaintiff. Dkt. No. 9. This request consists of a copy of plaintiff's original motion for reconsideration, to which plaintiff has appended a three page supplement. In addition to renewing his arguments in support of reconsideration, plaintiff appears to seek additional time in which to appeal the dismissal of this action to the United States Court of Appeals for the Second Circuit. Dkt. No. 9 at 9.

  Plaintiff's supplemental motion for reconsideration does not set forth any new or additional grounds for granting the requested relief. The fact that plaintiff disagrees with the Court's decision does not warrant reconsideration thereof. A motion for reconsideration is not a vehicle for advancing arguments previously rejected. Thus, plaintiff's supplemental motion for reconsideration is denied.

  As noted, plaintiff also appears to seek an extension of time in which to appeal the dismissal of this action to the Second Circuit. Rule 4(a)(5) of the Federal Rules of Appellate Procedure provides that upon a showing of "excusable neglect or good cause" a district court may extend the time for filing an appeal.*fn1 A motion requesting such an extension must be filed not later than thirty days after the expiration of the appeal period set forth in Rule 4(a). Fed.R.App.P. 4(a)(5)(A)(i).

  Plaintiff's motion for reconsideration was denied by Decision and Order filed November 17, 2005 (Dkt. No. 7) and Judgment dismissing this action was entered on November 29, 2005. Dkt. No. 8. Plaintiff's motion was filed on December 1, 2005, prior to the expiration of the period for filing a notice of appeal. However, plaintiff has not made any showing of excusable neglect or good cause for extending the appeal period, and his request is therefore denied.

  WHEREFORE, based upon the foregoing, it is hereby

  ORDERED, that plaintiff's supplemental motion for reconsideration and request to extend the time for filing an appeal (Dkt. No. 9) is denied, and it is further

  ORDERED, that the Clerk serve a copy of this Order on plaintiff.

  IT IS SO ORDERED.

20051213

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