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Polson v. Fischer

March 20, 2008

WILLIAM POLSON, PLAINTIFF,
v.
BRIAN FISCHER, COMMISSIONER, NYSDOCS; AND ROBERT K. WOODS, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. Mcavoy Senior United States District Judge

DECISION and ORDER

Plaintiff William Polson commenced this action by filing a pro se civil rights complaint, together with an application to proceed in forma pauperis. Dkt. Nos. 1, 2. By Decision and Order filed January 24, 2008, (1) defendant A. Thomas was dismissed from this action because he is not a state actor; (2) plaintiff was directed to submit an amended complaint because his complaint was incomplete, unsigned, and failed to state a claim against the remaining defendants; and (3) plaintiff was directed to either pay the full filing fee of $350.00 or submit an inmate authorization form. Dkt. No. 3. Plaintiff submitted an inmate authorization form. Dkt. No. 4. Plaintiff has also submitted a motion for reconsideration of this Court's January 24, 2008 Order. Dkt. No. 5.

I. In Forma Pauperis Application

Plaintiff has timely filed an inmate authorization form. Dkt. No. 4. After reviewing the entire file, including plaintiff's in forma pauperis application, plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is granted.

II. Motion for Reconsideration

In support of his motion for reconsideration, plaintiff requests that inmate A. Thomas be added back in as a defendant to this action because the entire action "is about this Inmate who was Place[d] in my SHU CELL as my Bunkie when he started Punching me and beating me in the Face and Chest." Dkt. No. 5 at 1. Plaintiff also asserts that he did previously submit his entire complaint and it was signed. Id.

A court may justifiably reconsider 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 manifest injustice. Delaney, 899 F.Supp. at 925 (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983)).

The standard for granting a motion for reconsideration is strict. Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Id. Furthermore, a motion for reconsideration is not to be used "for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple'...." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citations omitted).

Plaintiff has not indicated upon which justification he bases his motion for reconsideration.

Since plaintiff does not suggest either that there has been an intervening change in the controlling law or that he has discovered new evidence, the Court assumes that plaintiff seeks to argue that reconsideration is necessary to remedy a clear error or law or to prevent manifest injustice.

With respect to plaintiff's request that inmate A. Thomas be added back in as a defendant, as set forth in the January 24, 2008 Order, plaintiff is again advised that Section 1983 establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (§ 1983 "is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights.") (citation omitted). Parties may not be held liable under § 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994) (noting state action requirement under § 1983); Wise v. Battistoni, No. 92-CV-4288, 1992 WL 380914 (S.D.N.Y., Dec. 10, 1992) (same) (citations omitted). State action is an essential element of any § 1983 claim. See Gentile v. Republic Tobacco Co., No. 95-CV-1500, 1995 WL 743719, *2 (N.D.N.Y. Dec. 6, 1995) (Pooler, J.) (citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y. 1994)) (McAvoy, C.J.) (citation omitted)).

See Dkt. No. 3. Because inmate A. Thomas did not act under color of state law, plaintiff fails to state a claim against him pursuant to 42 U.S.C. § 1983. Plaintiff is merely trying to reargue an issue that was previously decided, and thus presents no basis for reconsideration in this regard.

Moreover, while plaintiff alleges that he did sign his original complaint, and it was complete, plaintiff is advised that the Court only received pages 1-4 of plaintiff's original complaint together with seven pages of exhibits. No signature page was included. The Clerk will be directed to send plaintiff a copy of his original complaint (Dkt. No. 1) for his review.

Based upon the Court's review of the relevant law and its application to the facts of this case, the Court concludes that its previous decision was legally correct and did not work a manifest injustice on plaintiff. ...


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