By Decision and Order, dated May 18, 2011 ("Order"), the Court denied several applications for preliminary injunction filed by pro se plaintiff Arthur Kinlaw ("Plaintiff"), in an action against Brian Fischer, Commissioner of the New York State Department of Correctional Services ("DOCS"); Theresa Knapp-David, Associate Commissioner of DOCS; James Walsh, Superintendent of Sullivan Correctional Facility ("Sullivan"); Lynn Lilley, Deputy Superintendent of Sullivan; Dr. Wladyolaw Sidorowicz, Facility Health Services Director of Sullivan; Patrick Griffin, Superintendent of Southport Correctional Facility; Correctional Officer Van Fuller, and Floyd Darbee, a nurse (collectively, "Defendants").*fn1 In the Order, the Court found, among other things, that Plaintiff failed to establish irreparable harm if he were not transferred from Elmira Correctional Facility ("Elmira") to Eastern Correctional Facility ("Eastern") as he had requested; that Plaintiff failed to establish irreparable harm if he were not readmitted to the Elmira infirmary; and that Plaintiff failed to show that he was being "denied the opportunity to participate in or benefit from Defendants' services, programs, or activities."
(Order at 4-6 (quoting Lighthall v. Vadlamudi, No. 04 Civ. 0721, 2006 WL 721568 at *19 (N.D.N.Y. Mar. 17, 2006)).)
On July 22, 2011, Plaintiff filed a motion for reconsideration, which we construe liberally as a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("FRCP"), arguing, among other things, that (1) Defendants violated the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA") by housing Plaintiff at Elmira and by "continu[ing] to deny Plaintiff" his "approved reasonable accommodation items"; (2) "Plaintiff was subjected to retaliatory discharge from the Elmira infirmary"; and (3) Defendants' counselcommitted perjury when responding to the injunction motion. (Pl.'s Mot. for Rec., dated June 22, 2011 ("Pl. Mem."), at 2-3, 12, 16.)
On September 21, 2011, Defendants submitted an opposition arguing, among other things, that (1) Plaintiff's motion is untimely because "[it was] submitted to prison authorities for mailing on June 26, 2011, well beyond the fourteen days after this Court's May 18, 2011 Order, permitted under Local Civ. R. 6.3, and beyond the twenty-eight days permitted under [FRCP] Rule 59(e)," and (2) "Plaintiff has failed to submit any controlling legal decisions or new facts that [the Court] may have overlooked." (Defs.' Opp'n to Mot. for Rec., dated Sept. 20, 2011 ("Defs. Opp'n"), at 2.)
On October 12, 2011, Plaintiff submitted a reply, arguing, among other things, that Defendants "caused Plaintiff to file an untimely motion" because they engaged in "mail tampering" and deprived him of "law library supplies . . . for weeks at a time." (Pl. Ltr., dated September 19, 2011, at 3.) Plaintiff did not respond to Defendants' argument that he has failed to submit any controlling legal decisions or new facts that the Court overlooked.
For the reasons set forth below, Plaintiff's motion for reconsideration is denied.
A Rule 60(b) motion is granted only under "extraordinary circumstances," or to prevent "extreme and undue hardship." DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994) (quoting Matarese v. Le Fevre, 801 F.2d 98, 106 (2d Cir. 1986)). When evaluating a Rule 60(b) motion, courts strive to "strike a balance between serving the ends of justice and preserving the finality of judgments." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
While a "pro se litigant should be afforded leeway," LaGrande v. Key Bank Nat'l Ass'n, 393 F. Supp. 2d. 213, 219 (S.D.N.Y. 2005), and "should not be impaired by harsh application of technical rules," Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983), he or she is not excused from producing "highly convincing evidence in support of [his or her] motion to vacate a final judgment" under Fed. R. Civ. P. 60(b). Gwynn v. Deleo, No. 86 Civ. 1596, 1991 WL 125185, at *4 (S.D.N.Y. July 3, 1991) (quoting Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1986)).
In deference to Plaintiff's pro se status, the Court liberally construes Plaintiff's motion for reconsideration as a Rule 60(b) motion, as the time for a reconsideration motion has expired. See e.g., Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010) ("An untimely motion for reconsideration is treated as a Rule 60(b) motion.")
Plaintiff fails to identify any controlling law or factual matters that the Court overlooked in the Order or that might reasonably have altered the outcome as set forth in the Order. See Painewebber Inc. v. Nwogugu, No. 98 Civ. 2441, 1999 WL 219908, at *1 (S.D.N.Y. Apr. 15, 1999) ("[H]aving failed to demonstrate an exceptional circumstance, or that there is an issue of fact or law that controls the decision and which the Court has overlooked, [pro se defendant's] Rule 60(b) motion is denied."); see also Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). Nor does Plaintiff point to any mistake, fraud, or other reason that would warrant relief under Rule 60(b).
The (unpersuasive) arguments presented in Plaintiff's motion are largely duplicative of the arguments previously submitted by Plaintiff in numerous written submissions to the Court. See Muina v. Hous. Pres. & Dev., No. 91 Civ. ...