The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties consented to have the undersigned conduct any and all proceedings in this case, including entry of final judgment. Dkt. #42. On January 30, 2009, this Court issued its Decision and Order (Dkt. #102) granting defendants' motion for summary judgment (Dkt. #79). On February 2, 2009, the Clerk of Court for the United States District Court, Western District of New York entered Judgment in favor of defendants and closed the case. (Dkt. #103). Presently pending before this Court is petitioner's "Motion for Re-Hearing Under Rule 40" (Dkt. #107); plaintiff's Motion to Appoint Counsel (Dkt. #106) and plaintiff's Motion for Recusal (Dkt. #105). Although plaintiff's Motion for Re-Hearing is styled as a motion pursuant to Federal Rules of Civil Procedure 40, plaintiff seeks relief from a judgment or order pursuant to Rule 60(b)(1)(4)(6) of the Federal Rules of Civil Procedure. For the following reasons, plaintiff's Motion for a Re-Hearing (Dkt. #107) is denied. By reason of the foregoing, plaintiff's Motion to Appoint Counsel (Dkt. #106) and Motion for Recusal (Dkt. #105) are denied as moot.
Plaintiff filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. ##1 and 9. Plaintiff alleged that while an inmate at the Southport Correctional Facility, his rights pursuant to the First, Eighth, and Fourteenth Amendments to the United States Constitution were violated. Id. More specifically, plaintiff, proceeding pro se, filed this action on or about February 11, 2002, seeking "dismissal" (expungement) of each "disciplinary ticket" addressed in the amended complaint, termination of each defendant's employment with the New York State Department of Correctional Services, and compensatory and punitive damages for violations of his rights under the First, Eighth and Fourteenth Amendments to the United States Constitution.*fn1 Id. The following claims remained and were addressed by this Court in its Decision and Order granting defendants' motion for summary judgment:
(1) in or about December 1999, defendants Brandt and vonHagn denied plaintiff emergency medical care and defendant Brandt denied plaintiff medication in or about January 2001; (2) defendants Brandt and vonHagn retaliated against plaintiff because plaintiff had filed grievances against defendants Brandt and vonHagn; (3) defendants Donahue, Gilmore, Irizarry, Quinn, Ryan, Selsky, Sheahan and Wilcox violated plaintiff's due process rights under the Fourteenth Amendment in connection with disciplinary hearings and appeals handled by each of the defendants; (4) defendant Gardner interfered with plaintiff's legal mail and denied plaintiff permission to take a religious correspondence course in violation of the First Amendment; and (5) defendants Corcoran and Weingartner violated plaintiff's First Amendment right of access to the New York Court of Claims. As reflected in its Decision and Order filed January 30, 2009, this Court granted defendants' motion for summary judgment in all respects. Dkt. #102. Consistent with this Court's Decision and Order, the Clerk of Court for the Western District of New York entered Judgment in favor of defendants on February 2, 2009. Dkt. #103. Thereafter, on or about August August 6, 2010 plaintiff filed the instant Motion for Recusal (Dkt. #105), Motion to Appoint Counsel (Dkt. #106). On or about August 10, 2010, plaintiff filed the instant Motion for a Re-Hearing (Dkt. #107).
As set forth at length in this Court's Decision and Order filed on January 30, 2009, with respect to his deliberate indifference claim, plaintiff failed to establish that he suffered from a sufficiently serious medical condition and that defendants Brandt and vonHagn were deliberately indifferent to his medical needs. With respect to plaintiff's retaliation claim against defendants Brandt and vonHagn, plaintiff was unable to establish retaliatory motive. Even if plaintiff could establish such retaliatory motive, the record before the Court clearly established that there were proper, non-retaliatory reasons for the punishment imposed on plaintiff.
Plaintiff's claims of deprivation of due process against defendants Donahue, Gilmore, Irizarry, Quinn, Ryan, Sheahan, Wilcox and Selsky also failed as a matter of law because plaintiff received all the process he was due during the course of each disciplinary hearing and appeal. With respect to plaintiff's denial of right to take a religious correspondence course claim against defendant Gardner, that claim failed because contrary to plaintiff's assertions, defendant Gardner was not personally involved in the decision. Plaintiff's second claim against defendant Gardner, interference with legal mail, also failed as a matter of law because plaintiff cannot under any circumstances demonstrate that he suffered actual injury. Finally, this Court found that plaintiff's claims of interference with access to the Courts claims against defendants Corcoran and Weingartner failed as a matter of law because with respect to defendant Corcoran, plaintiff could not demonstrate that he suffered any injury and with respect to defendant Weingartner, plaintiff could not establish that any conduct on the part of defendant Weingartner caused the dismissal of Claim No. 99509 pending before the Court of Claims.
A complete recitation of the underlying factual background is set forth in this Court's January 30, 2009 Decision and Order. Dkt. #102.
Rule 59 provides for grounds upon which a party may move for a new trial or to alter or amend a judgment. The standard for granting a Rule 59 "motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). The Second Circuit has further held, a party may not seek to "solely relitigate an issue already decided." Id.
Federal Rule of Civil Procedure Rule 60(b) provides in relevant part, "[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (4) the judgment is void; . . . and (6) any other reason justifying relief from the operation of the judgment." Rule 60(b) is not to be used as a substitute for an appeal. Diamond v. Pataki, No. 03 CIV. 4642 (SHS), 2004 WL 1924755, at *8 (S.D.N.Y. Aug. 27, 2004).
The instant motion is nothing more than an effort by plaintiff to re-litigate those issues already decided by this Court. In the alternative, plaintiff is attempting to use Rule 60(b) of the Federal Rules of Civil Procedure as a substitute for an appeal. Plaintiff's conclusory allegations that the Court failed to consider certain arguments, and erred in granting defendants' motion for summary judgment, without more, are wholly insufficient to warrant relief under either Rule 59 or 60(b) of the Federal Rules of Civil Procedure. Moreover, plaintiff's motion for a re-hearing does nothing more than reiterate all of the facts and arguments that were before this Court on defendants' motion for summary judgment. Plaintiff can point to nothing that this Court overlooked. As is evident from this Court's ...