United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge.
Marcus Anthony Micolo ("Plaintiff) filed this action on
June 22, 2015, seeking relief pursuant to 42 U.S.C.
§§ 1983, 1985(3), 1986, and 1988. (Dkt. 1). On
October 28, 2016, United States District Judge Michael A.
Telesca granted in part and denied in part Defendant's
motion for summary judgment. (Dkt. 49). The action was then
reassigned to the undersigned. (Dkt. 50). Plaintiff has filed
a "motion for reargument, " asking this Court to
"conduct a de novo review" of Judge Telesca's
Decision and Order. (Dkt. 53 at 2; see also Dkt.
52). For the reasons stated below, Plaintiffs motion is
Standard of Review
Federal Rules of Civil Procedure do not recognize a motion
for "reargument." See Schaurer v. Coombe,
108 F.R.D. 180, 182 (W.D.N.Y. 1985). Although the basis for
Plaintiffs motion is not entirely clear, the Court interprets
it as one for reconsideration under Fed.R.Civ.P.
54(b). A district court may reconsider its
interlocutory decisions under Rule 54(b), which provides:
[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
Fed. R. Civ. P. 54(b) (emphasis added); see also United
States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982)
("A district court has the inherent power to reconsider
and modify its interlocutory orders prior to the entry of
judgment, whether they be oral, or written, and there is no
provision in the rules or any statute that is inconsistent
with this power." (citations omitted)); United
States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973)
("[S]o long as the district court has jurisdiction over
the case, it possesses inherent power over interlocutory
orders, and can reconsider them when it is consonant with
justice to do so.").
merit reconsideration under Rule 54(b), a party must show
"an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent a manifest injustice." Official
Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers
& Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)
(citation omitted), abrogated on other grounds by Bell
Atl. Corp. v. Twombly, 550 U.S. 554 (2007).
Reconsideration is limited because prior decisions of the
court are treated as the law of the case. Id. A
district court has discretion in reconsidering its prior
decisions under Rule 54(b). Id. "A party may
not use a motion for reconsideration to advance theories of
relief or facts that were not previously presented to the
court." Harris v. Millington, 613 F.App'x
56, 58 (2d Cir. 2015).
Plaintiff has Not Established His Entitlement to
has not raised new or additional evidence or arguments in
favor of his motion for reconsideration, nor does he contend
that there has been an intervening change in controlling law.
Instead, he simply repeats the arguments he originally made.
(See Dkt. 52;Dkt. 53;Dkt. 62).
arguments are no more meritorious now than they were when
Judge Telesca originally ruled on them. The Court need not
repeat the analysis set forth in the October 28, 2016,
Decision and Order, which considered the arguments raised by
Plaintiff and set forth Judge Telesca's interpretation of
the relevant law. It is sufficient to note that Plaintiff has
not demonstrated clear error requiring reconsideration.
raises one argument that merits additional comment. He
asserts that the Decision and Order failed to address his
claims against the dismissed Defendants brought pursuant to
42 U.S.C. §§ 1985(3) and 1986. (Dkt. 53 at 1). The
Decision and Order addressed Plaintiffs conspiracy claims
under § 1983. (See Dkt. 49 at 15-20). The
standard for a conspiracy under § 1983 is significantly
similar to the standard under § 1985(3). Compare
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)
("To prove a § 1983 conspiracy, a plaintiff must
show: (1) an agreement between two or more state actors or
between a state actor and a private entity; (2) to act in
concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing
damages."), with Dolan v. Connolly, 794 F.3d
290, 296 (2d Cir. 2015) ("A conspiracy claim under
Section 1985(3) requires a plaintiff to allege: [(1)] a
conspiracy; [(2)] for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws; and [(3)] an act in furtherance of
the conspiracy; [(4)] whereby a person is either injured in
his person or property or deprived of any right or privilege
of a citizen of the United States.").
Telesca's determination as to Plaintiffs conspiracy
claims-that Plaintiff failed to adequately plead facts which
show that Defendants reached an agreement (see Dkt.
49 at 15-20)-applies to claims under both § 1983 and
§ 1985(3). An agreement or conspiracy is a necessary
pleading element under both § 1983 and § 1985(3).
See Upper Hudson Planned Parenthood, Inc. v. Doe,
No. 90-CV-1084, 1991 WL 183863, at * 11 n.32 (N.D.N.Y. Sept.
16, 1991) ("For purposes of pleading requirements ...
the Second Circuit has not distinguished between a conspiracy
to deprive a person of his constitutional rights under §
1983 and one under § 1985(3); and thus, those cases
pertaining to § 1983 conspiracies have equal